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Sunday, October 21, 2007

Ind. Law - Is the City of South Bend's Strip Bar Ordinance Enforceable?

An interesting article today in the South Bend Tribune, written by Jamie Loo, begins:

SOUTH BEND -- Is the city's adult business ordinance enforceable?

Citizens for Community Values Political Action Committee has argued repeatedly that the city isn't enforcing the entire ordinance passed by the Common Council in 2000.

But city attorney Chuck Leone says that because a judge struck down parts of the ordinance in 2001, the city can only enforce the parts ruled constitutional.

In a case in 2001:
Judge Michael Scopelitis issued a 77-page partial judgment on the case, finding that some parts of it pre-empted by state liquor laws are unconstitutional.

The most controversial finding was that the 10 p.m. closing time can't be applied to establishments with a liquor license, because they are pre-empted by state liquor laws. It can only be enforced for businesses without liquor licenses.

The provision that calls for a $2,500 fine for physical contact between entertainers and customers was also struck down. Scopelitis wrote in his ruling that the way it was worded made it a violation "for patrons and entertainers to engage in a simple handshake or inadvertent or accidental touching even while both are fully clothed."

Scopelitis held more hearings a few months later, beginning in February 2002 through October 2002, to clear up the remaining issues in the case, such as whether there were enough "negative secondary effects" from the strip bars to enact the ordinance in the first place, the licensing fee and whether adult business owners were harmed by the law and entitled to damages.

During that time, Indiana attorney general Steve Carter filed a "friend of the court" brief supporting South Bend's case, including the 10 p.m. closing time. Carter felt that state liquor laws didn't pre-empt the closing time.

At the October hearing, the judge told The Tribune he expected to finish ruling on the case sometime after Jan. 27, 2003.

But before Scopelitis could rule, the Colleys and the city reached a settlement in November 2005, which dismissed the case entirely. The city bought two of the Colleys' former strip bars, and as part of the agreement, they dropped their lawsuit against the city. * * *

In a press release issued last month, CCV specifically insisted the 10 p.m. closing time should be enforced.

"We're pointing to the closing time because that's one of the most glaring things that isn't being enforced," Mangan said.

The fact that there was a lawsuit is "irrelevant" at this point because it doesn't exist anymore, he said. Carter has weighed in on the issue supporting the ordinance, he said, and the city should enforce it. Mangan said the lack of enforcement appears to be a "political problem" and that a change in city administration would mean the ordinance would be enforced properly.

"It's time for the mayor and Chuck Leone to be honest about the enforcement issues," he said. "The attorney general has told them and they know this: that the South Bend adult business ordinance isn't pre-empted by state law."

But Staci Schneider, spokeswoman for the Indiana attorney general's office, said Carter's brief in the adult business ordinance case is only an opinion, not a ruling.

Whenever a constitutional issue comes up in a court case, the attorney general's office has to be notified so it has the opportunity to intervene. Schneider said the attorney general doesn't have the authority of a judge, and Carter's opinion doesn't supersede a court order.

"The judge's ruling is the judge's ruling," Schneider said.

Leone said this is an unusual situation because the case never received a final judgment and was dismissed. He said what was ruled on sent a "clear message" to the city that parts of the ordinance are not enforceable and wouldn't stand a challenge in court.

"Our expectation is if we litigate the same issues, we would get the same results," he said.

Because of that, Leone said the city is only following the guidelines that are still enforceable. This includes general licensing provisions, age restrictions on patrons and restrictions on viewing booths.

Leone said enforcement of ordinances is generally complaint-driven, and as a "general rule" the city doesn't go out looking for violations.

In the past few years, Leone said the city hasn't received specific complaints at adult businesses to cause the city to respond. He said that if the city started hearing many complaints about a specific establishment, the city would determine whether city codes were violated.

It's a matter of appropriately allocating resources, Leone said. For example, Leone said the city spends a fair amount of time enforcing other quality-of-life ordinances such as those involving noise, drug houses and "disorderly" houses.

"That's where we hear from the residents of South Bend that there are issues," he said. "So that's where we focus our resources and try to be responsive in that way."

The wording of the entire ordinance is still in the city code and would take amendments enacted by the Common Council to officially remove them.

Posted by Marcia Oddi on October 21, 2007 03:17 PM
Posted to Indiana Law