JEFFERSONVILLE — Attorneys in a civil case between the Town of Clarksville and adult business Theatair X have 10 days to file proposed orders on what they wish to see happen next in the case, following a hearing Thursday.
The business has been operating on a provisional license since May, when its attorneys filed an administrative appeal to the town voting to uphold revocation of its license by town building commissioner Rick Barr. Barr’s action was based on multiple alleged zoning code violations including sex acts on the property and a suspension within the previous year.
But the appeals process has taken a backseat in recent months, as attorneys have litigated the facts surrounding ordinances passed by the Clarksville Town Council in summer aimed at regulating the adult business. A big issue at hand now is whether or not Theatair X must pay the more than $770,000 in fines they say was accrued while the business was not in compliance with the new ordinances.
In June, the town voted to bolster its laws pertaining to sexually oriented businesses within the town, which included limiting hours of operation and reconfiguring the interior of the business so that there is a clear line of sight from the manager’s station to all public parts of the building except restrooms.
On July 2, the town adopted a scale of fines for violating the rules, and have since said Theatair X is on the hook for the more than $770,000 — initial violations are $2,500 and each subsequent one is $7,500. Attorneys representing the town say that the fines are for the time period between Oct. 4 and Nov. 24, when investigators visited the business several times and have testified that it was not in compliance in making sure the management had a direct line of sight to the public areas.
But attorneys with Midwest Entertainment Ventures LLC, which operates the business, and AMW Investments LLC, which controls the property, argued Thursday that the ordinance establishing the fees may not even be legitimate. They said that under statute, such a law must be published within 30 days of adoption in the closest newspaper to the business, which is the News and Tribune.
Attorneys for the Town say they sent the notice to the paper July 3, but a News and Tribune clerk who has taken over legal notices within the past six months said that it was first published Aug. 21 and Aug. 28. The clerk said she had discovered the error when checking the email of the previous clerk who had been terminated. She testified that she contacted the woman who sent the original notice and let her know it would be running right away.
But attorneys for the business and property owners say the town should have followed up on it.
“They’re asking for $775,000 in fines,” Louis Sirkin, lead attorney for Theatair X, said. “They have an obligation to explain why they didn’t comply with their end.
The woman testified that she wasn’t aware if the town had contacted the previous employee about the notice when it failed to run within six weeks of receiving it.
On Nov. 21, Clark County Circuit Court No. 4 Judge Vicki Carmichael approved a preliminary injunction ordering Theatair X to comply with the ordinances during the case. Attorneys confirmed to the News and Tribune in mid-December that the hours had previously been cut to close at midnight.
A private investigator testified during the hearing, stating that she had gone into the business on three separate occasions — Nov. 23, 24 and 29 — and the first two days was able to access the private viewing booths and theater; the third time she was told those areas were closed.