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Topless dance club closed again

By David Hudson
First Amendment Center

A federal judge refused to extend a temporary restraining order last week to prevent officials from closing down a topless dance club for failure to obtain proper building and zoning permits.

Cleveland's P.M. opened in Valley View, Ohio, in May and featured topless dancing. The day after the club opened, village officials obtained a cease-and-desist order. They argued the club had violated a restrictive zoning law prohibiting adult entertainment businesses from locating within one mile of a school or 2,000 feet from any residential district, park or church.

The club reopened in early June after gaining a state occupancy permit. However, village officials said the club should still be shut down because club owners had failed to obtain village building and zoning permits.

The owners of Cleveland's P.M. responded that a village permit was not required because Valley View is not authorized to issue zoning permits, in part because it does not have a state-certified building department.

When village officials tried to shut the business down again, the club filed a federal lawsuit questioning the village's permit power and the constitutionality of the zoning ordinance. In Fifth Column, LLC v. Village of Valley View, the club owners contend the actions of the village officials violated their First Amendment rights of free expression.

Federal Judge Kathleen O'Malley recently granted a temporary restraining order to allow the club to stay open. However, O'Malley refused to extend the temporary restraining order last week, saying that the club owners should have obtained a zoning permit from the village.

David Lambros, law director for the village, was out of town and unavailable for comment, although he told The (Cleveland) Plain Dealer after the hearing that he was satisfied that the court had acknowledged the village's power to enforce building and zoning codes.

However, the case is not over; the judge has set a preliminary injunction hearing for July 16, at which time she is expected to address the underlying constitutional issues instead of the permit question.

Steven Sindell, attorney for the club, said: "The actions of the village officials were an unconstitutional abridgment of my client's First Amendment rights. The motivation of the village officials is as clear as a bell—this whole process is motivated by a suppression of First Amendment rights."

Perhaps anticipating the constitutional challenges, the village officials amended Valley View's zoning law to make it less restrictive. The new ordinance, passed earlier this month, prohibits adult entertainment businesses from locating within 1,000 feet of any school, residential district, park or church.

Sindell says the reason for the change was that "the village officials knew their prior law was constitutionally suspect."

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