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Theatair X on U.S. 31 in Clarksville.

SOUTHERN INDIANA — A federal judge is expected to issue a ruling in a recent lawsuit filed by the new owner at Clarksville’s Theatair X against the town, ahead of a council meeting Tuesday that could affect the fate of the business.

Clarksville Ministries, a limited liability company formed Aug. 3 to reopen the recently shuttered adult business along U.S. 31, filed an emergency motion for a temporary restraining order Aug. 27 against the Town of Clarksville and its building commissioner stating that the town has not granted the company a temporary license required under town statute.

The business called for the decision to be made ahead of the Clarksville Plan Commission meeting Sept. 1 and the Clarksville Town Council meeting Sept. 7, where the council could take action with a zoning ordinance that will mean a new adult business cannot open at the same site where Theatair X has operated for 50 years.

The plan commission did vote Wednesday to recommend to the council language amendments to the town zoning ordinance related to adult businesses. Included is a change in the distance an adult business must be from other types of developments. Specifically it states that an adult business cannot be within 750 feet of other types of businesses, including the motel renovated into apartments in 2019 which is just under 750 feet away from a portion of the Theatair X building. The current zoning buffer before the potential amendment is 500 feet.

Scott Bergthold, representing Clarksville in the case, said during oral arguments Friday morning in U.S. District Court Southern District of Indiana that the zoning change would not affect the entire plat where Theatair X sits, but it would include the building itself as being too close.

He has also said that the updates are overdue, and that the town wants to protect the community against negative secondary effects of an adult business while adhering to the First Amendment, which states that they can’t be zoned out of town. In the new zoning language, new adult businesses will be in one of 30 locations zoned I-1 or I-2.

The previous owner, Midwest Entertainment Ventures, Inc. (MEV), had been engaged in ongoing litigation with the town since 2019, when it filed an appeal against the town for revoking its business license. The building commissioner had taken this action after multiple zoning code violations, including sex between patrons on the premises, and a license suspension within the previous 12 months.

MEV closed up shop after on Aug. 12, a Clark County judge upheld the town’s decision to revoke the business’ license for one year, although that action was not final and MEV still has an active provisional license. However on Wednesday, the former owner dropped the case against Clarksville.

Clarksville attorneys say the town hasn’t been able to approve a temporary license because Clarksville Ministries’ application itself wasn’t complete, and that they believed the business hadn’t even closed the sales deal yet with the former owner to be able to apply. On Tuesday, the new owner was notified of the deficiencies in the application so they could be corrected.

Part of that was to include a detailed layout of the interior of the building, along with placement of light fixtures, attorneys said during oral arguments Friday morning in U.S. District Court Southern District of Indiana.

Clarksville Ministries had submitted such a document, but Clarksville representatives said it did not include details on the roughly 40 peep show booths the previous owner operated but that the new owner said the business doesn’t intend to use.

Clarksville Ministries’ attorney Matt Hoffer said the business would not even be aware of what the application deficiencies were if not for the lawsuit being filed, and said the town had “stonewalled,” and that there was “no reason for why the license wasn’t issued,” he said, adding that the inaction was retaliation by the town.

He also argued that while the town said they needed an accurate design of the interior for things such as first responders knowing where to go inside the building in case of a fire or other emergency, it wasn’t something they previously had when re-issuing the license for the previous Theatair X owners.

The judge, referring to the fact that in the new zoning, the Theatair X building would be excluded by about a foot, asked Bergthold “Is that by pure coincidence or is that retaliation?”

Nothing that has happened “is evidence of retaliation,” he said.

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