Is there a type of Viagra to assist in this sort of dysfunction? Stupid question, I suppose, considering that we wouldn't be able to afford it even if Steve Price didn't vote against it.
Attorney Gibson’s reasoning is impeccable within the constraining framework of the city’s traditional mantra of despair in the face of heavy lifting.Strip club doesn’t meet New Albany city ordinance, by Daniel Suddeath.
… (New Albany City Councilman Dan) Coffey figured he would know about II Horseshoes Gentleman’s Club, which opened two weeks ago at 1720 Old River Road, since a 2001 ordinance passed by the council
requires adult entertainment clubs to pay heavy fees to locate in the city.
“Something like this doesn’t happen without somebody knowing about it,” he said.
City Attorney Shane Gibson does know about it, but said the standing ordinance would likely fail in court if the city attempts to enforce it …
… Gibson said the ordinance was patterned after laws from other cities. The only problem is many of those cities have lost court cases trying to
uphold those measures, according to Gibson.
“I think most people who would look at the ordinance would say it clearly restricts freedom of speech,” Gibson said, adding he consulted other legal experts about the ordinance before deciding not to pursue the fees from II Horseshoes.
Gibson believes there are 10 areas in the ordinance that wouldn’t be upheld by courts. He said in tough economic times for the city, risking losing money in a shaky legal case wouldn’t be wise.
When your civic motto is, “we can’t,” it makes perfect sense for common councilmen to write an unenforceable, perhaps unconstitutional law, then for all to obliviously sit tight for as long as it takes for an enterprising individual or company to learn that it’s little more than shadow puppetry, and to violate it with impunity.
To do otherwise would come dangerously close to the quality widely known as “pro-active,” which was banned from the city limits of the Open Air Museum at some point prior to the Civil War. The disgraced Millard Fillmore may have had some role in it ... or was that Aaron Burr?
What has yet to be explained in this latest sad episode of jaw-dropping municipal flaccidity is how the II Horseshoes case came to land atop the city attorney’s desk in the first place.
Understanding that no one wants to make this point aloud, but persisting in the belief that transparency in the best policy in the arena of governance -- especially coming from an administration that the author supports -- permit me to note that until this chronology is explicated, there remains the appearance that the longtime friendship and political alliance between Mayor England and the club’s ownership had something to do with the ordinance’s vetting prior to any effort at compliance.
There’s probably nothing to it, right? But for the sake of honesty and communication, wouldn’t it be better to acknowledge the awkward nature of the situation, and aggressively head off the criticism rather than permit blogs and the local newspaper to expose it for you?
Pro-active. Transparent. Communicative.
Is it really something in the water hereabouts that suppresses the gag reflex at times like this?
---
Previously at NAC:
Did he do it? Can they do it? Do it to us one more time?
Live adult entertainment ordinance: The words stir passions, but is foreplay enough?
Disclaimer: I know and like Shane Gibson a great deal.
ReplyDeleteHowever, even putting personal feelings aside, I for one applaud Shane for having the foresight to do a little legal research in advance of a lawsuit to determine the chances of success before spending six figures in costs to come up short. Part of the practice of law is the ability to study the law & advise clients about chances of success in order to allow a reasonable cost/benefit analysis to be performed. In the face of our present economic woes, a little analysis about chances of success versus the cost is actually a good idea, in my opinion.
Everyone bitches about the city not having enough money for this and that, yet when someone makes an educated assessment that its not a great idea to move forward with a costly lawsuit which stands little chance of success, everyone wants to criticize and second guess. But that's just life - its easier to sit and throw stones from an outside perspective sometimes.
As for me, I dont really care whether this club is there or not, but that's just personal opinion. I can still respect those who feel differently. However, I'm sure its a dive, so I know I wont fraternize it, so whether its there or not doesn't bother me.
All this discussion reminds me somewhat of all those forces who fought against the biggest economic opportunity this county ever saw - the casino - based on their warnings of increased crime & corruption. Yet, Harrison County seems to have done just fine, and they're laughing all the way to the bank, while Floyd Country struggles to pay our bills.
Anyhow, I simply appreciate someone saving $100k in tax dollars from being wasted on litigation going nowhere...just like happened on the adult video store on Main which still seems to be in operation despite the overwhelming resources spent to fight it.
Satire aside, I don't disagree with Shane's assessment of the situation.
ReplyDeleteBut as a layman, not a lawguy, is it reasonable to ask why such an ordinance rests unexamined until the moment of contact?
If it isn't up to snuff, then strike it and the others off the books. Is it there merely to be a symbolic gesture, like audio recordings of dogs barking to discourage burglars?
And, as in the instance of a prominent local lawyer defending his client against the intrusion of historical preservation laws by citing them as unconstitutional (and threatening to sue!), shouldn't city government periodically call a bluff? Or should they fold after every hand?
I don't know the legislative background of the adult business ordinance in NA, so I can only guess. However, I would suspect that however many years ago, someone got wind of a naughty business planning to come to town, and the phone lines lit up at the city council office, and an ordinance was quickly roughed out in hopes of stopping the new business. As they are always VERY difficult to frame against the constitutional protections, anything hastily drafted is usually doomed to failure. Again, just a guess.
ReplyDeleteI cannot say whether having an "toothless" ordinance on the books which likely fails constitutional muster is not still a deterrent for such businesses - I'm sure the business owners still have to make the same cost/benefit decisions whether to open shop and pay their own lawyers to defend against it if the City comes after them. Perhaps the threat of such litigation has dissuaded other naughty businesses - who knows?
As to the other ordinace issue you raise - I dont know anything about the ordinances at issue in that case - but I do agree that the City needs to stand up when the chances of success are good - or when the stakes are too high to sit idly by. However, there is SOOOO much reported law in all the state and federal jurisdictions on the First Amendment as it pertains to adult businesses that its much easier to evaluate chances of success in advance, as Mr. Gibson seems to have done.
Maybe ROCK should hire lawyers instead of paying for billboards and holding press conferences?
What gets me more than anything is the back room way Mr. Mattingly got this place up and running. The fact that the mayor is a close personal friend makes the stink meter go to ten. Who knew what and when? Mr. Mattingly obviously knew the ordinance was all bark and felt no need to make public his plans. Can't we find an ordinance from another city that has withstood the judicial test and implement with some bite?
ReplyDelete"City Attorney Shane Gibson does know about it, but said the standing ordinance would likely fail in court if the city attempts to enforce it …"
ReplyDeleteThe City doesn't attempt to enforce anything, so why even go through the academic exercise of evaluating the ordinance?
Does anyone know of any city ordinance that is actually enforced?
ReplyDeleteTo speak to lawguy's first comment.
ReplyDeleteI too applaud the effort of Shane or any other government official to prevent waste of resources whenever possible.
However, it seems strange (or convenient) to me that an ordinance that is 7+ years old is just now getting the scrutiny to determine it's flaws.
Apparantly who ever brought the issue to the forefront then felt it was important to have such an ordinance on the books.
Given that one can't throw a bottle cap in this county without hitting a gaggle of lawyers please tell me how & why an ordinance of this nature (or any other for that matter)ever got to the table if it was suspect of being flawed.
Such action/inaction goes only to support the apparent dysfunctionalilty of our local government.
Is it any wonder that even the uneducated balk at adding otherwise constructive $$$ to the coffiures for the inept to waste when they won't even attempt to use the tools given to collect fees & fines??
And then the really big question is do any of our ordinances carry any weight?
But then we would have to try enforcement in order to find out wouldn't we?