VOL. 123 | NO. 87 | Friday, May 2, 2008
Judge Won't Stop Enforcement Of Adult Bookstore Ordinance
By Bill Dries
For the second time in a week, a federal judge has denied an injunction to stop enforcement of the Shelby County ordinance that regulates adult-oriented businesses. But the denial by U.S. Magistrate Thomas Anderson is in the court challenge of the ordinance by two Memphis adult bookstores.
Anderson ruled Wednesday in the lawsuit by adult-bookstore owners against Shelby County and the city of Memphis. James Pleasants, attorney for the bookstores, told The Daily News he will appeal the ruling to U.S. District Judge Daniel Breen. Breen requested Anderson hear the injunction request, which is a role magistrate judges often perform.
"We don't agree that it affects the bookstores but doesn't affect the clubs," Pleasants said after the ruling.
Like strip club owners, the bookstore owners are challenging the constitutionality of the ordinance that also governs them.
After originally denying the request by strip club owners for an injunction, U.S. District Court Judge Bernice Donald then granted the injunction that bars enforcement because the club owners appealed her earlier denial to the Sixth Circuit Court of Appeals in Cincinnati.
The rules were to take effect Wednesday.
Different and same
Attorneys for the bookstore owners tried to make some of the same arguments against provisions that apply only to the clubs.
"The plaintiff in this action is an adult bookstore, not an adult cabaret," Anderson wrote. "The court believes that decision is best left for Judge Donald."
But Pleasants noted that on other points, the ruling used some of the same reasoning Donald used.
Like the strip clubs, workers at and owners of the bookstores would have to apply for permits and undergo background checks. They also would be banned from serving or allowing any alcoholic beverages on the premises.
The plaintiffs in the lawsuit before Anderson are challenging those provisions claiming they violate terms of the U.S. Constitution.
Owners of the three Tammy's bookstores, who are not plaintiffs in the suit, already have applied for permits from the Adult Oriented Establishment Registration Board and were conditionally granted permits last month. Final approval is contingent on the completion of the criminal background checks by the Tennessee Bureau of Investigation.
The board settled on the procedure allowing the Shelby County Clerk's office, which gets the applications, to grant conditional approval of permits at its April 21 meeting, the body's second meeting since it was formed.
The lawsuit pending before Anderson was filed by East Brooks Books Inc., which does business as Getwell Bookmart and Airport Adult Theatre.
"The court finds that the adverse secondary effects created by adult oriented establishments that would continue should enforcement of the act be enjoined, balance the public interest in favor of denying the injunction," Anderson ruled.
The issue of adverse secondary effects such as prostitution and drug dealing are one of the central flash points in the two court cases. In the case of the strip clubs, the city and county cite police reports of prostitution and drug arrests in and around the clubs.
There is also the report of Eric Kelly, a consultant with Duncan Associates of Austin, Texas, hired by local government to assess the state of the strip clubs and bookstores. Kelly concluded that the Memphis strip clubs he visited were the wildest he had seen in the entire country and flagrantly flouted local ordinances and laws with impunity.
However, the less-publicized section of his report dealing with the city's adult bookstores concluded that the bookstores generally followed the rules, including closing at midnight as required and in many cases abiding by rules that ban doors on private viewing booths.