CLARKSVILLE — A federal judge has ruled that the Clarksville building commissioner did not have the authority to deny an annual license to the new owner of Theatair X last week and that the business still has the temporary license in effect that had been issued moments before.
The order issued Tuesday by Chief Judge Tanya Walton Pratt of the United States District Court Southern District of Indiana states that Clarksville Building Commissioner Rick Barr only had the authority to either issue an annual license or a written notice of intent to deny the license when he provided a letter of “final denial” last week to Clarksville Ministries, LLC. The final decision, according to the ruling, rests with the town council if an appeal is filed, which it was Monday.
A final denial means that the business’ temporary license is expired.
The order also states that the town cannot issue any citations related to the business being open, pending a decision from the council and/or judicial review. It also states that the court believes that the town’s actions were inadvertent and did not order the town to pay the business’ legal fees or find them in contempt of court, which Clarksville Ministries had asked for in a filing last week.
“We’re very excited to be entering the Clarksville market,” Jack Mayhoffe, public relations Manager for Clarksville Ministries, LLC, said in a statement sent to the News and Tribune.
“A federal judge has forced the town of Clarksville to recognize Theatair X’s constitutional right to operate and has determined that Building Commissioner Rick Barr exceeded his authority in trying to curtail our constitutional rights.”
Clarksville Ministries filed the federal lawsuit Aug. 27, the initial claim stating that Clarksville was acting against town code by not issuing a temporary business license to the new owner. They were seeking to reopen with modifications — no peep show booths, and only “sexually oriented but non-obscene” material played on the two larger theater screens — after the former owner, Midwest Entertainment Ventures, Inc. (MEV) closed the doors in mid-August.
On Aug. 12, a Clark County judge affirmed the town’s decision to revoke MEV’s license for one year, which the town had done in response to multiple zoning code violations including sex on the property. However MEV still had a provisional license when it closed.
Attorneys representing the town say the application had not been complete and oral arguments were held Sept. 3 on the question of the temporary license. At that time, the judge said she would have a ruling before the town council meeting Sept. 7 in which the board voted on zoning ordinance amendments that would affect the new business opening.
The judge issued her ruling just after 4 p.m. that day — three hours before the council meeting — that the town must issue the temporary license if the missing application materials had been provided, which Matt Hoffer, who represents Clarksville Ministries, said they had been at 3. However the email to the building commissioner bounced back, and he did not in fact receive the material until 5:24.
Within an hour, the building commissioner issued the temporary license according to the judge’s order and five minutes later, denied the annual license, based on an update the council approved at a special meeting days before that took licensing requirements out of the zoning code and into the municipal code.
During the meeting Sept. 7, the council approved further amendments that require an adult business to be at least 750 feet from certain other types of developments, which makes a portion of the current Theatair X building too close and therefore in noncompliance. If they had had an annual license in place at the time that was passed, they’d have two years to comply.
It’s not clear whether having a temporary license at the time of that zoning change means Clarksville Ministries will have the benefit of annual application review under the previous zoning ordinance, but the litigation is expected to continue.
“Theatair X, widely regarded as ‘The Pride of Clarksville,’ is a historic institution that has proudly served Clarksville residents since the 1960s,” according to the statement sent from Clarksville Ministries. “Theatair X is iconic...and we will continue to fight to remain open for many decades to come. If necessary, we will take this fight to the Supreme Court, and Clarksville taxpayers will end up footing the bill.”