City holds line again on nude dancing

With a favorable court decision in hand, and a brand-new federal lawsuit pending, parties who want to open a club in Athens featuring nude dancing came before the Athens Board of Zoning Appeals for the third time Tuesday night, seeking the zoning permit that has eluded them for the last three years.
They didn't get it this time either, but they weren't surprised. They also plan to keep up their legal fight to compel the city to let the bump-and-grind begin.

Local businessman Demetrios Prokos, who owns the Stimson Avenue storefront where the "gentleman's club" is proposed, said before the board meeting that he didn't expect a favorable decision even though both a county judge and a state appeals court have ruled that the board acted outside its authority when it denied permits for the club in 2008.

"It would be crazy for them to turn me down today," Prokos said a few hours before the board meeting. "But I just think they are going to turn me down today, because they are crazy."

He was right, at least about the meeting's outcome. The zoning board, required by a recent court decision to vote again Tuesday on four different versions of a permit application for the project, all of which it had turned down in 2008, once again denied the strip club a permit in each case. (The different applications had described the same project by different names, as an "adult theater," "adult entertainment business," "nightclub" and "private club/assembly hall.")

Attorney Scott Mergenthaler represents Three Wide Entertainment, the Shade-based business that has proposed putting the strip club into Prokos' storefront on Stimson Avenue. After the meeting, Mergenthaler said he wasn't surprised either by the board's decision; he believes the board members simply object to the idea of having strippers perform in a club on Stimson Avenue, and will block the project no matter what city code says.

"You can't interpret the zoning code they way they are reading it," Mergenthaler insisted. He said he believes the only reason the board denied the permit is that it finds nude dancing offensive. "I honestly and intellectually can't think of any other reason (for their vote)," he said.

City Law Director Patrick Lang, however, disagrees with Mergenthaler's reading of city code, as he has done throughout the legal battle over the strip club.

Mergenthaler argues that a strip club falls under the broad heading of "entertainment," which is listed in the code as a permitted use in a B-3 general business zone, such as the one on Stimson Avenue. Lang, however, points to specific types of entertainment business named in the code section bowling alleys, for example and argues that inclusion of these examples was clearly meant to limit the kinds of entertainment businesses that can set up shop in a B-3.

Just because the code allows "entertainment" as a legitimate business use, Lang asked at Tuesday's meeting, "does that mean any kind of entertainment in the world fits in?" If so, he suggested, someone could legally put an amusement park with roller coasters on Stimson, and "that would clearly be an absurd result."

Mergenthaler, as mentioned, sees the opposite of what Lang sees in the code.

"There is no, absolutely no, qualifying or limiting language (in the code section) as to what 'entertainment' is," he told the board. And what that should mean, he argued, is that Three Wide's proposed club whose entertainment will consist of "partially clad, perhaps nude women dancing" should clearly be allowed.

THE REASON TUESDAY'S vote took place is a ruling in May by the 4^th District Court of Appeals, sending the case back to the zoning board. After the board turned down Three Wide's permit applications in 2008, the company appealed to Athens County Common Pleas Court. In June 2010, Judge Michael Ward ruled that in making its decision, the board had improperly considered issues it should not have taken into account, such as the "morality" of a strip club, or its appropriateness for the neighborhood.

The city appealed, and last month the appellate court upheld Ward's decision, bringing the case back to square one with the zoning board.

Changing the dynamic was the news that on Monday, Prokos and Three Wide owner Christopher Stotts had sued the city in U.S. District Court, alleging that the denial of the zoning permit violated their First Amendment rights, because nude dancing is a legally protected form of expression.

Lang made a point of telling board members at the outset that they should not be intimidated by the federal lawsuit, or let it affect their decision-making, and assuring them that the city would provide legal defense for them. "We've got your back on this," he promised.

The suit also makes a 5^th Amendment "takings" argument, that the city's actions have improperly deprived the plaintiffs of property such as revenues from the business, and in Prokos' case, rents.

The suit doesn't name a figure for the alleged "takings," but Prokos has noted that the building in question is 17,000 square feet in size, and that he estimates he could get, at the very least, $10 a square foot in rent for it. Because of the city's actions, he alleges, the building has been empty except for a car lot he runs out of it since the dispute began.

Clearly, Prokos' animus toward city regulators goes far beyond the strip club dispute. He claims that for years, he has tried repeatedly, and invested a considerable amount of money, to come up with business uses for the building that the city would approve of including restaurants such as Tim Horton's and Chuck E. Cheese, apartments, and retailers. In each case, he alleges, though he deliberately tried to find uses that fit with the city's comprehensive land-use plan, he ran afoul of overly restrictive zoning regulations, that made the projects unfeasible. The strip club, he said, was a last resort; if it's not approved, he suggested, the only financially sensible thing to do with the building may be to raze it.

"I have a $2 million building that you're not paying for," he told the board. "But you want me to turn it into a park."

City Code Director John Paszke interrupted at one point, noting that while Prokos has talked with code officials about many of the projects he discussed at the meeting, he has not actually submitted permit applications.

AS THEY HAVE in the past, some community members spoke against the strip club though one man said he supported it. Phyllis Rovner of Ohio Avenue told the board that as a woman, and as a resident of city's east side, she doesn't consider nude women dancing to qualify as "entertainment." Bick Weissenrieder, CEO of the Hocking Valley Bank next to Prokos' building, warned the board that "there are more property values involved here than Mr. Prokos'."

In discussing plans for the strip club prior to the meeting, Prokos insisted that he's not a fan of the idea personally, but feels at this point, it's the only viable rent-paying business he has a chance of actually getting into his building.

If the club does open, he promised, it will be discreet, tasteful and well-run, with security officers on the doors. As he envisions it, he said, patrons entering will have a choice of going into either a "gentleman's" or a "ladies" club, with dancers of different genders in each. "There will be no lap dancing, no tipping of the girls or the guys," he added.

Zoning board members themselves were careful this time around to avoid any talk of the project's supposed unsavoriness, which is what got them in trouble with the courts last time (though some of the members have changed since 2008.) In their discussion, however, they seemed to find persuasive Lang's argument that not all "entertainment" is created equal in zoning terms, and that a club with strippers can legitimately be treated as a very different animal from a nightclub or a theater.

"I think that language does matter," stressed chair Betty Hollow. (Entertainment) is a category. It doesn't say that every entertainment in the world could be put in that space."