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Published: Sunday, 7/21/2002

City fights to control its X-rated nightlife

BY ROBIN ERB
BLADE STAFF WRITER

Harry and Doris Gradomski live in a modest North Toledo neighborhood where the lawns are dotted with Little Tikes toys and in-line skates.

Begonias spill over flower boxes. Sprinklers run on hot days. On cool evenings, neighbors visit one another from their front porches.

But just across the clematis-draped, chain-link fence that runs the length of their side yard, a sign in front of a startling yellow and purple building boasts: Velvet Rope, a Ladies Cabaret. The parking lot remains quiet for now, and city officials say they do not know when the owners plan to open.

“It won't stay quiet for long, I'll guarantee you,” said Mr. Gradomski, a retired phone company technician.

“Right. They all get out there at night and scream and holler and pee,” added Mrs. Gradomski about the last patrons at the building that most recently was a late-night bar. “But what are you going to do?”

The Velvet Rope, whose owners could not be reached for comment last week, would be just the latest business in what has in the past decade become a sort of Y-shaped, scattered red-light district in an otherwise blue-collar strip of North Toledo.

In fact, Toledo has once again become a key national battleground in the decades-long war between a community's right to regulate what some consider morally repulsive businesses and the adult entertainment industry's right to free expression and enterprise.

Expected by the end of this month is a draft report from two consultants who were hired to detail Toledo's skin trade and offer some policies for regulating it.

The consultants, Eric Damian Kelly and Connie Cooper, are past presidents of the American Planning Association and the authors of the book, Everything You Always Wanted to Know About Regulating Sex Businesses.

City council hired them, at a cost of $19,500, to be its private detectives. For several weeks recently, the duo hopped Toledo's late night scene, watching its exotic dancers, scanning the crowds at bookstores and novelty shops, and making note of what's offered at local adult-oriented massage parlors and lingerie modeling studios.

Both were struck at the number of nude-dancing offerings and video viewing booths.

“We've never done a per capita type of study, but it seems you have a generous amount of those places,” Ms. Cooper said.

It's not that the consultants are trying to shut them down.

For starters, much of the adult entertainment industry is made possible not only by a willing market, but also by the U.S. Constitution, Mr. Kelly said.

Exotic dancing is a constitutionally protected form of speech, the U.S. Supreme Court has ruled. And though various courts have ruled that communities can set up certain conditions for adult businesses - such as regulating where they locate in relation to, day care centers for example - conventional wisdom holds that it's next to impossible to ban them altogether, Mr. Kelly said.

In Toledo, a 1979 ordinance prevents adult business from operating within 500 feet of homes, schools, and day-care centers or within 1,000 feet of two other adult businesses.

But court challenges have delivered three powerful blows to that ordinance, gutting the city's requirement that such establishments obtain a special permit.

“Now you can just pay your fees, file your paperwork, and open your doors,” said Steve Herwat, executive director of the Toledo-Lucas County Plan Commission.

Some worry that even the few teeth that are left in Toledo's law might get knocked out from another blow from the multimillion adult business industry.

The city continues to fight with several bookstores to force them to take the doors off their video viewing booths. City inspectors recently closed three nightclubs featuring nude or topless dancers, citing them for operating within 500 feet of residential neighborhoods.

Toledo failed to prevent the opening of Priscilla's, a sex novelties store across from Notre Dame Academy, and now faces an unrelated court battle to prevent a nude dance club from opening near the new Mud Hens stadium.

Moreover, a judge in 1999 essentially stripped state liquor agents of their power to monitor activities inside the establishments by ruling as too vague - and therefore unconstitutional - a part of the Ohio Administrative Code that allowed agents with the Ohio Department of Public Safety to cite a liquor establishment for “lewd activity.”

Now, if investigators see something that three years ago crossed the line - a dancer simulating sex on stage or touching a client, for example - agents generally have to “walk on by,” said Ed Duvall, deputy director of the Ohio Department of Public Safety's investigative unit.

“It's no harm, no foul,” Mr. Duvall said. Citizens' complaints, he said, have surged. “Now we're hearing: `Hey, this never happened before at the bar down the street,'” he said. “The [club owners] know we're not enforcing Rule 52, and some of them are taking advantage of that.”

The legal uncertainty at the state and local level has left Toledo “wide, wide open” for adult entertainment and businesses that some argue might profit from such business, said Michael Dearth, head of the Block Watch area that includes Telegraph Road and North Detroit Avenue.

“Now it's cash advance places, strip clubs, and motels,” he said. “The word's out to the industry: It's wide, wide open in Toledo, Ohio. Come on in!”

Harry and Doris Gradomski are concerned that when Velvet Rope opens just a few yards beyond the back fence of their North Toledo home, it will mean an increase in noise and rowdy behavior. Harry and Doris Gradomski are concerned that when Velvet Rope opens just a few yards beyond the back fence of their North Toledo home, it will mean an increase in noise and rowdy behavior.
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Indeed, it appears that the local clashes have put Toledo in the national spotlight; the actors coming from across the United States.

Priscilla's is based in Kansas City, Mo., and listed on its lawsuit against Toledo is a Denver attorney. Arguing the city's ordinance against booth doors is a lawyer from Los Angeles. And wanting to open the nude dance club near Fifth Third Field is a man from Illinois.

In Jackson, Mich., officials now are reviewing their adult business ordinances after the local newspaper recently ran a large, front-page article about Toledo's woes and compared it to Jackson's battles with its adult businesses.

“It's not publicity we'd ask for,” Mr. Herwat said. “You can bet people are watching. What happens to a Deja Vu here, can affect a Deja Vu in another city.”

Of course, Toledo isn't alone. Sexually oriented businesses - SOBs as planners call them - dot other parts of Toledo's landscape and nearby suburbs.

Prompted by the brief operation earlier this year of an unlicensed adult-oriented massage parlor at the corner of State Rt. 25 and West South Boundary Street, Perrysburg council in April passed a moratorium on such non-licensed, non-clinical massage parlors until it can review its adult-oriented business laws. An updated draft ordinance that would limit hours and set restrictions on operating hours for unlicensed massage parlors will be presented to council at its Aug. 6 meeting.

In May, Maumee passed an ordinance to restrict adult-oriented businesses to certain industrial areas. And Rossford city council is reviewing its regulations to make sure they could withstand future challenges.

In Lucas County, 10 of its 11 townships have varying levels of restrictions on adult businesses. The western half of Providence Township, however, has no zoning at all.

A lack of such regulations leaves a community open to adult businesses, said Michael Cochran, executive director of the Ohio Township Association.

So what's a community to do?

Puns intended, a community needs to take a “prophylactic approach” to zoning, setting up rules before a business comes to town. Otherwise, it gets caught “with its pants down,” quipped Alan Weinstein, a Cleveland-Marshall College of Law planner and a member of the Ohio Chapter of the American Planning Association.

But even inking a law ahead of time isn't foolproof.

If the law is too broad - for example, if it relies on a sweeping definition of “obscene” - it runs the risk of being ruled unconstitutional because it's too vague. If it's too narrow - for example, if it includes overly restrictive zoning laws - the law runs the risk of being unconstitutional because it would prohibit the industry's right to free speech.

Mr. Weinstein has helped more than a dozen communities draft adult entertainment legislation, telling clients to “always err on the side of being less restrictive than more restrictive.”

“If a city is less restrictive, the worst thing that happens is that an adult business opens at a place the city chooses,” he said. “If the city is overly restrictive, the worst thing that can happen is that the adult business opens up at a place the adult business chooses.”

It's tough to measure the dollar impact of the adult business trade.

In Ohio, information that could be gleaned from tax records - profits, numbers of employees, for example - is considered proprietary. Those numbers are suspect anyway because the industry is, for the most part, a cash business and the dancers are independent contractors. They dance the circuit, make cash tips, and pay “house fees” to the dance clubs in which they perform.

Nationally, no objective source closely tracks such business figures, and those provided by the trade industry indicating up to $10 billion in annual sales or more have recently come under fire for being greatly exaggerated.

The Toledo-Lucas County Plan Commission has listed 26 adult businesses within Toledo's city limits. At least four are temporarily closed, including the three nightclubs in residential neighborhoods Toledo closed earlier this month. The Velvet Rope has not opened yet.

Of the 21 that remain open, three offer nude dancing; five are adult-oriented massage or lingerie modeling parlors and 12 offer adult videos, books and novelties. Several include private video viewing booths. Another is listed as a “bath house.”

That doesn't count a recent surge in advertisements for local “escort services,” Mr. Herwat, said.

“We need to get regulations on the books that make it easier for us to inspect them, to go in quickly and make sure they're following the rules,” Mr. Herwat said. “If they aren't, we close their doors. Click.”

Still, others question trying to regulate the businesses at all. Allan Rubin, a Southfield, Mich., attorney and member of the First Amendment Lawyers Association, says studies have shown that adult entertainment establishments are safer than many other bars, in part because they have more security. Moreover, owners strive to keep the establishments clean to attract patrons.

He said he questions communities that try to control such businesses.

“The first question is why are they going there [with regulations],” he said, “and the second question is, more importantly, do they know where they want to go?”

So where does Toledo want to go with the control of its adult business? That's where Mr. Kelly and Ms. Cooper come in.

The consultants visited Toledo's late-night neon landscape, taking note of lighting, loiterers, and litter. Did dancers touch patrons? How clothed were they? Were there suspicious crowds of loiterers?

Mr. Kelly said many of the nude dancing establishments were “very, very well run.” But at some places, he questioned the reason for dark corners and back rooms.

“You've got people in there sizing each other up and using it as a pickup place,” he said.

Ironically, communities often overlook those places, concentrating instead on a more well-run, well-managed novelty shop or dance club that snags headlines, he said.

Generally, Ms. Cooper and Mr. Kelly suggest that communities employ a mix of zoning and licensing to monitor the businesses a community decides it will allow. Such licenses would work much the same way as a driving or liquor license and could be revoked for too many violations.

Adult-oriented massage parlors and lingerie modeling shops could offer easy circumstances for prostitution, Mr. Herwat said, adding one of his well-repeated phrases: “There's not a constitutional right to a massage.”

As for strip clubs, he points to the December decision in the U.S. Sixth Circuit Court that restricted exotic dancers in Nashville to a stage at least 18 inches off the ground and three feet away from patrons.

It's not clear what kind of impact, if any, licensing requirements would have on Toledo's current adult businesses or those expected to open.

Neighbors like the Gradomskis, whose chain-link fence could be the latest skirmish line in what promises to be a lengthy battle, say they just want to be left alone.

Like many of their neighbors, the Gradomskis told The Blade they realize they might not be able to stop adult entertainment from creeping into their neighborhood.

“But if they're going to be here, at least be respectable,” Mrs. Gradomski said. “They should be quiet and clean. I don't want to be reminded they're there.”



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