On Friday, a U.S. District judge heard arguments about whether the city of Angola should be able to enforce its ordinance regulating adult-oriented business against a proposed strip club.
In August, months after the Florida owners of Showgirls III sued Angola – as well as the citys building inspector, Dean Twitchell, and zoning administrator Vivian Likes – developers Alva and Sandra Butler asked a judge for a preliminary injunction against the city.
The injunction would prevent the city from enforcing its licensing and regulatory ordinance and its unified development ordinance against a proposed strip club, planned for the 300 block of West Wendell Jacob Avenue.
Attorneys for the Butlers have argued that the ordinances, which were not enacted until after the city learned of the proposed strip club, are unconstitutional because they try to suppress free speech based on content, according to court documents.
They argue they are suffering financial harm while they wait to build their business and that the public interest is served in preventing the enforcement of the ordinances.
But attorneys for the city argue that the Butlers have conceded there are existing places to put their strip club elsewhere in the Steuben County seat.
And, the city contends, the Butlers have no vested right to operate a sexually oriented business at that particular location.
Before Aug. 19, 2012, sexually oriented businesses were permitted inside the citys medium-to-large general commercial districts. They must locate outside a 1,000-foot radius of similar businesses, residential districts and public gathering places, such as schools, parks, playgrounds, libraries and other public structures, according to court documents.
Before September 2012, the city had no ordinance regulating sexually oriented businesses within its borders, according to court documents.
On Sept. 17, 2012, the Angola City Council conducted all three readings of a proposed ordinance to regulate and license sexually oriented businesses.
No public comment was heard by the council, except a telephone conference with an attorney from Tennessee who specializes in helping municipalities create such ordinances, according to the minutes of the meeting submitted as evidence in the lawsuit.
Then, in November, the citys plan commission changed the zoning law to require sexually oriented business to locate in a different zoning area and changed the required cushion around other such businesses and public gathering places from 1,000 feet to 750 feet, according to court documents.
The Butlers attorney contends that other city officials, such as Likes, intentionally delayed the process of permitting the club until the city could get ordinances in place to prevent it from locating there, according to court documents.
On Nov. 26, Building Commissioner Twitchell sent the Butlers an intent to deny notice, saying the proposed strip club would be within 750 feet of multiple residences, according to court documents.
The Butlers appealed his decision to a hearing officer at a Feb. 12 hearing. The hearing officer denied their appeal Feb. 15, according to court documents.
Angola officials contend the Butlers accomplished nothing in establishing their sexually oriented business at the Wendell Jacob Avenue location before the Sept. 17, 2012, meeting that passed the ordinance.
They argue in their response to the Butlers motion and complaint that the developers engaged in construction on the property without getting the proper permits, failed to file for a state construction design review before Oct. 18, 2012, and did not receive state approval until November.
Angola officials argue that Showgirl has never applied for a building permit to do any construction on the site, according to court documents.
When the developers pushed for permission to build under the new ordinances, their request was denied because it was within the 750-feet cushion.
The Butlers appealed the citys decisions, but their request for a sexually oriented business license was denied.
The hearing officer who reviewed their request found that the city had studied the issue and had reviewed licensing and regulatory judicial opinions, studies, meta-studies, analysis, and a Power Point presentation, according to court documents.
The case goes on
In the few months since the Butlers requested the preliminary injunction, the city and the developers have fought over whether city building inspectors should be allowed to see inside the building owned by the Butlers.
Attorneys for the Butlers have asked, if a judge were to allow the city to inspect the building, that they be allowed to review the citys emails concerning this matter.
On Friday afternoon, U.S. District Chief Judge Robert Miller heard arguments from both sides on the injunction – with six witnesses for the Butlers, along with their evidence, and two witnesses and evidence from the city of Angola. The hearing was continued until Nov. 13 in South Bend.
No ruling was issued Friday.