Injunction is issued after suit questions its constitutionality

Mar 6, 2004

Author: Joseph Gerth |  |  Source: The Courier-Journal   >>

Nude dancing returned to Louisville yesterday, following a one-night hiatus, when a judge issued an order blocking the metro government from enforcing its strict new adult-entertainment ordinance.

The ruling by Jefferson Circuit Judge Stephen Ryan came despite plans by the Jefferson County Attorney’s office to ask that the case be moved to federal court.

The ruling means that Louisville Metro Police officers who cited 25 strippers and adult-entertainment managers Thursday night for violations of the ordinance will not be writing those citations this weekend.

Ryan had refused to grant an injunction Thursday, after lawyers from adult businesses tried to challenge the ordinance simply by amending an earlier lawsuit with their new claims.

Ryan said the businesses’ lawyers erred and should have filed a separate action in either state or federal court.

Lawyers for P.T.’s Showclub and Blue Movies filed a new lawsuit in Jefferson Circuit Court yesterday. A computer in the Jefferson Circuit Court Clerk’s office randomly selected Ryan to hear the case, said Debbie Linnig Michals, a spokeswoman for the clerk’s office.

County Attorney Irv Maze said his office will continue to seek to have the federal courts hear the case. He said it should be in U.S. District Court because the federal judiciary will have the final say, even if a state court considers the issue first.

The ordinance, adopted last week, governs activity within strip clubs, adult bookstores and other adult-entertainment businesses, their location and even their signs. It requires entertainers to wear at least pasties and G-strings and stay at least 6 feet from customers when they are nearly nude.

It prohibits them from touching customers and prohibits customers from directly tipping them – in essence a prohibition on slipping money into dancers’ garters and G-strings.

Lawyers for the entertainment businesses claim the metro government is trying to put the adult entertainment industry out of business.

The businesses’ lawyers rely solely on the Kentucky Constitution in arguing that the ordinance is unconstitutional.

Allan Rubin, a lawyer for P.T.’s Showclub, said they used state arguments in an effort to keep the case in the state courts. Rubin said he believed he had a better chance of getting a quick hearing in a state court.

He also argued that the ordinance is vague and impossible to decipher.

To illustrate that, Rubin said that although lawyer s for Maze’s office said on Thursday that dancers wearing “one thirty-second more” clothing than pasties and G-Strings would not fall under the purview of the ordinance, dancers wearing much more were cited for violating it Thursday night.

One dancer at P.T.’s, he said, was cited for touching a customer and accepting tips directly from a customer even though she was wearing underwear, a hula skirt and a coconut bra.

He placed a photo of the dancer wearing the costume into evidence.

Maze’s office, however, argued that the case hinges on federal constitutional issues and should have been filed in federal court.

Bill O’Brien, head of Maze’s civil division, argued that the businesses’ lawyers had used the same arguments – but made federal claims – in Ryan’s court on Thursday.

O’Brien told Ryan that he planned to file a petition with the U.S. District Court after leaving Ryan’s courtroom. Once such a petition is filed, state court judges lose jurisdiction.

Ryan left the bench about 3 p.m. and said he probably wouldn’t rule on the issue because he assumed that the petition would be filed before he had a chance to review the pleadings and cases cited by the lawyers.

But at 4 p.m., when the petition had not yet been filed, Ryan returned to his office to enter the order granting a temporary injunction.

His order says only that the plaintiffs would suffer irreparable harm if the law was enforced and that they have raised a substantial question as to whether the ordinance is constitutional.

Maze said attorneys for his office filed the federal petition about 4:15 or 4:30 p.m.

Mike Hatzell, a lawyer who represents several adult businesses, including the Thorobred Lounge, said, ” It will be business as usual tonight.”

Hatzell said the club’s dancers would be performing topless and bottomless if they choose.

Ryan started his hearing yesterday by chastising Metro Council member Doug Hawkins, D-25th District, who was in court and who had criticized Ryan in an article in The Courier-Journal yesterday.

Hawkins said that he believed that adult-entertainment lawyers wanted their case to be heard in Ryan’s court because Ryan has ruled in their favor on some past cases. Hawkins called Ryan “the porn industry’s ‘go-to guy.'”

Paul Gold, a lawyer for P.T.’s, said the lawyers wanted to keep the case before Ryan because he has been involved in the case for more than two years and has a deep understanding of the constitutional issues involved.

At the start of yesterday’s hearing, Ryan said he had “something to say to my councilman, Mr. Hawkins.”

Quoting the French philosopher Voltaire, he told Hawkins, “I disapprove of what you say, but I will defend to the death your right to say it.”

Then he added, “I’m nobody’s go-to guy.”

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