BY RICHELLE THOMPSON
The Cincinnati Enquirer
FRANKLIN -- A Cincinnati federal magistrate judge has struck down the city's sexually oriented businesses ordinance, declaring it unconstitutional.
The ruling, released Tuesday, opens the door for new adult entertainment businesses and settles a yearlong dispute between city officials and New York, New York, a northern Warren County club that describes itself as an "upscale go-go bar."
The decision also comes at a time when numerous cities and counties in Southwestern Ohio have passed -- or intend to pass -- laws similar to Franklin's aimed at deterring sexually oriented businesses.
"The people of the city of Franklin should not be worried that overnight the entire (Interstate 75) corridor will be door-to-door strip clubs," said Laura Abrams, a Cincinnati lawyer who deals with laws about sexually oriented businesses throughout the country.
Still, the ruling "shows cities and other political subdivisions that there is a proper way to regulate these types of businesses. And if you don't follow the rules, your ordinance will be declared unconstitutional."
U.S. District Magistrate Judge Jack Sherman Jr. found in favor of New York, New York on three major points:
The ordinance, passed by council members in June 1997, was too restrictive, the judge said. It barred adult entertainment businesses from locating within 500 feet of the right of way of an interstate highway, church, school, public park, public building or property zoned for residential purposes.
That left 3.2 acres of the city's 28,800 acres -- or less than 0.02 of 1 percent of Franklin's land -- for adult entertainment businesses. Further, that parcel had no sewer system or road frontage.
The ordinance also charged excessive fees, the judge ruled. It required a $300 application fee and $1,000 annual permit fee.
Finally, the judge said, the ordinance did not provide an adequate system for judicial review.
For New York, New York manager Robin Pickens, the ruling means the club will undergo a planned renovation and may make a name change. "Now we know we're going to be here for a while," Ms. Pickens said. For city officials, it means going back to square one in their fight against sexually oriented businesses.
When council members passed the ordinance, they weren't trying to eliminate such businesses, Mayor Jim Mears said. They just wanted to control the location and protect the city's estimated 11,200 residents from the side effects of adult entertainment businesses, such as an increase of crime.
Residents "don't want those type of businesses. No city wants them," Mr. Mears said. But "with the Constitution the way it is today, it's very hard to regulate them."
New York, New York, the second Warren County adult entertainment business, opened Aug. 11, 1997, with nude and partially nude dancers. Then-owner Alan Rosen was arrested twice within the first week for violating the ordinance, and he filed a federal lawsuit challenging it.
Mr. Rosen felt the club's location at 73 Second St., near Interstate 75, was a prime spot. City leaders did not. The club is 267 feet from an apartment complex, which at the time was home to 15 children. Parents there were upset.
The lawsuit brought to the forefront the question of whether a municipality's right to restrict adult entertainment carries more weight than a company's right to free speech and enterprise.
"We know we can't eliminate these businesses. We would like to have them placed where they can't be flaunted in front of our children," Mr. Mears said. "I don't know what freedom of speech is anymore." Franklin officials are expected to discuss a possible appeal at Monday's council meeting.
