Matt Hoffer, who represents business owner Clarksville Ministries in a federal case filed in late August, filed on Thursday an emergency motion to modify the temporary restraining order, impose sanctions on the town and for the town to show cause why it shouldn’t be held in contempt of court.
The attorney for a company attempting to reopen adult business Theatair X has filed a new motion questioning the town’s timing in denying the business’s annual license last week and filed an appeal to the town’s decision.
The filing came two days after a federal judge ruled that the town issue the business a temporary license — which it did. But Hoffer states that the town didn’t react quickly enough to approve it. He also said that the town then immediately issued a denial letter 16 minutes before the town council meeting during which the council voted to approve a zoning amendment that would make an adult business unable to operate at the Theatair X site without modifications to the building.
Clarksville Ministries initiated the federal claim Aug. 27, stating that the town was not responding quickly to its application for temporary business license to reopen Theatair X. The former owner, Midwest Entertainment Ventures, Inc. (MEV) closed the doors to Theatair X in mid August after a Clark County judge ruled the town was correct in revoking its license for a year due to multiple zoning code violations including sex on the premises. That order was not yet final and MEV still held a provisional license when it made the call to close. Its litigation started in 2019.
Attorneys representing the town said the temporary license hadn’t initially been issued due to the application materials not being completed, although the business maintains that they weren’t told what those deficiencies were until after the federal case was filed.
Oral arguments were held in the case Sept. 3, with the judge ordering just after 4 p.m. Tuesday that the town must issue the temporary license if all application materials had been correctly submitted, which included an updated diagram of the interior of the building.
Hoffer said in the filing those material were sent at 3:03 p.m. to Clarksville Building Commissioner Rick Barr and town attorneys Greg Fifer and Scott Bergthold, an hour before the judge’s order, but that he received an alert at 5:07 p.m. that the email had bounced back from Barr only. He resubmitted it at 5:24 p.m. and at 6:39 p.m., received word from Barr that the temporary license had been granted.
Five minutes later, Hoffer received from Barr a letter of final denial for the annual license, citing that the application only included employee information for one person but that each of the two manager’s stations must be staffed for the business to open. It also said that there was a column that obstructed the view of one station to the surrounding area, which was against the zoning code.
The temporary license expires at which point the town issues or denies the annual license. The town says there was no license of either type in place when the council voted shortly after 7 p.m. to adopt amendments to the zoning code, which requires a buffer of 750 feet between an adult business and other types of developments. That requirement was previously 500 feet. Under the amendment, a portion of the Theatair X building is now too close to an apartment complex on U.S. 31. The town also passed an ordinance removing licensing provisions from the zoning code and instead incorporating that into a new chapter of the town municipal code. Hoffer stated in the Thursday filing that Barr’s letter can’t serve as the final denial because he’s only permitted to “issue a license or issue a written notice of intent to deny a license to the applicant,” and that the decision becomes final only after a hearing before the the town council or only if the applicant fails to appeal within 30 days.
He also stated in the filing that the building commissioner approving the temporary license, then denying the annual license minutes before the council meeting was “calculated, intentional and in violation of the ” according to the motion. But Fifer, one of the attorneys representing Clarksville, said when reached by email Monday that the town disputes the contentions made in the filing. He said Barr did not receive the completed application materials until 5:40 p.m. and although his office had closed at 4:30, issued the temporary business license within an hour in accordance with the court filing.
Fifer also stated there had been conflicting provisions in the previous zoning ordinance related to licensing, which was one reason the town chose to remove licensing from the zoning code and incorporate it into a new chapter in the town municipal code. Hoffer’s appeal filed Monday argues that neither of the reasons for denial are accurate. The column within the building does not obstruct the view of a manager working there, according to the appeal. He also states in the filing that Theatair X did have two employees working as soon as the temporary license was issued. The second had worked for the previous owners and still had a valid license to work as an employee of an adult business in Clarksville.
They opened the store at 6:40 p.m. and about a minute later, the second employee purchased a product then went to the station where the employee worked. Just before 7 p.m., Barr arrived and provided the letter for denial at which point they closed the store.
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