Back Off, Buddy

Like the lure of downtown parks to pigeons, the city of Dallas can't stop attracting litigation from topless clubs angered by increasingly restrictive laws against their businesses. The latest lawsuit comes from a strip club that, until now, hasn't been a starring player in Dallas' long-running titty-bar wars, yet its lawsuit filed July 18 in federal court seeks to shred the city's latest attempt to prevent such clubs from moving into residential neighborhoods.

The suit by Obsession Gentleman's Club, a businessmen's haunt tucked in among the pricey hotels and office towers of North Stemmons Freeway, contests a new city ordinance passed on March 8 with the intention of preventing adult businesses from moving into illegal locations before the law has a chance to catch up with them. But the city's latest legislation may again prove too ham-fisted to change the behavior of Dallas' wily adult industry, which has a long record of skillfully besting the city in court.

Rather than fight attempts to move its business, however, Obsession claims in its suit that it sought to comply with a City Hall edict to move its business by purchasing space further north on Stemmons. Whereas most rancor against sexually oriented businesses (SOBs) has sprung from the strip bar-infested Bachman Lake and Greenville Avenue areas, a 1997 city law that sought to disperse clusters of SOBs and move them out of neighborhoods--upheld in May by a federal judge, then promptly appealed--also applied to Obsession.

Obsession, owned by OGC Restaurant Inc., claims in its lawsuit that it bought land so it might relocate to legal ground but has been stymied by another law passed in March to regulate adult businesses. The March ordinance requires SOBs to jump through a bureaucratic hoop before opening their doors: Strip clubs and other adult businesses must obtain certificates of occupancy from building inspectors before they apply for an SOB license from Dallas police.

The rule was to ensure that adult businesses don't move into illegal locations before authorities have a chance to ferret them out--since once they move in, it takes years, even decades, to get rid of them. "The SOBs have perpetually tried to take the position that they are a victimized industry," says city attorney Madeleine Johnson, who notes that, as a moratorium against new SOB licenses ends late this month, city officials will finish a review of the entire regulatory framework surrounding adult businesses. "The truth of the matter is there is no one who has been more able to work the system and city departments against each other than this particular industry."

But Obsession's lawsuit argues that the March rules subject SOBs to financial peril since seemingly kosher (and costly) land can--theoretically, at least--be rendered unusable in the lengthy periods of time SOBs must cool their heels for permit approval.

Under this scheme, opponents would have enough time to move in a community institution next door to a future SOB and effectively block it from moving in, a scenario Obsession says creates an "obvious chilling effect" on its business. The 1997 ordinance bans SOBs, which include topless clubs and other adult businesses, from locating within 1,000 feet of other SOBs, as well as parks, schools, churches, day-care centers, or other community institutions, effectively herding them onto Harry Hines Boulevard and in other industrial zones.

"These amendments would require invest resources and efforts to relocate without any safeguards to ensure that a new protected use will not decide to locate within 1,000 feet during the open-ended approval period." Such risks, the lawsuit argues, amount to a violation of Obsession's constitutional rights to free speech and equal protection under the law.

Obsession manager Dana Herrick declined comment for this article, as did his attorney, Roger Albright. But the lawsuit essentially decries the city's latest SOB regulation as a Catch-22. To open shop, the lawsuit claims, an adult business must navigate the gamut of city agencies and expend top dollar, even though an SOB permit isn't assured. First, the suit explains, one must "attempt at your peril to ascertain if the requirements of Chapter 41A [city code regarding SOBs] with regard to distance...are met." However, "The city won't tell you because you can't file an application because you don't have a certificate of occupancy."

That's not all. To complete the process, according to the suit, adult businesses must: "Buy the land...Hire engineers, architects, site planners, etc. to prepare the building plans, a process taking several weeks or more...Submit those plans along with a building permit to the City...Construct the building which, depending on if it is new construction or remodeling, may take anywhere from 3 to 18 months."

Then: "Have the construction inspected by plumbing, electrical, fire, etc. at their leisure and convenience...If and when the project is 'green tagged,' apply for a certificate of occupancy." And finally, "Make application for a sexually oriented business license."

After all that, the lawsuit contends, an SOB license could be rejected by the police chief if, during the interim, a community institution such as a school or day-care center had sneaked in. In Obsession's case, the club bought its new land at 8550 North Stemmons Freeway in 1997 and was issued SOB licenses in 1997, '98, and '99. But the March law, and a corresponding May moratorium halting new SOB construction, effectively required Obsession to forfeit its SOB license while it built its new location.

City attorney Johnson is adamant that the city maintain power to stop outlaw SOBs from hurriedly moving into illegal locations.

She points to The Platinum Club and Pandora's Men's Club as two SOBs that recently opened without city approval and appear intent on using legal machinations to keep regulators at bay. Even so, she thinks her team will have more success from now on, since the 1997 ordinance has been upheld. "The clubs have a right to exist, but we have a right to regulate them," Johnson says. "We're taking them to the mat now."

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Jonathan Fox
Contact: Jonathan Fox