City, Pony to seek motions for summary judgment
by Terra Temple
Aug 31, 2011 | 3140 views | 0 0 comments | 66 66 recommendations | email to a friend | print
In an action that seems to be commonplace at recent Metropolis City Council meetings, the question of money spent on advice from outside sources arose again as the council wound down its Aug. 22 meeting with the financial report.

As Mayor Billy McDaniel called for a motion regarding the payment of salaries, payroll and contract bills, alderman Jerry Mizell questioned the bill for Economic Development Resources (EDR), the firm assisting the city with zoning issues and TIF designations.

As city attorney Rick Abell explained, the bill was in regard to EDR president Gene Norber's latest visit — which included working with the city's Zoning & Building administrator Chad Murray "on the zoning from the perspective of getting the maps for the adult businesses where they may or may not be able to go" — another question was raised.

"How many people are working on the adult maps — Scott Bergthold, Norber, Chad," alderman Richard Corzine said, counting off each name.

Bergthold is the Chattanooga, Tenn.-based attorney who drafted the city's sexually oriented business ordinance and is defending the city in the case.

Abell explained Murray is working with an EDR employee on the adult business maps from "technical standpoint — strictly the mapping portion of it, and knowing which zones and coming up with the areas. Scott is advising them based on the law and what the law requires of most municipalities so that what they put together will be legally sufficient and will stand the challenge. That's why we're using Scott Bergthold, to avoid those sorts of situations."

Bergthold and attorneys for Metro Pony LLC, the city's only sexually oriented business, are expected this week to file motions for summary judgment as the temporary restraining order against the city's sexually oriented business ordinance continues.

In an interview last week, Abell said if both sides — the City of Metropolis and Metro Pony LLC — are going to file the motions, it will occur this week.

A motion for summary judgment is a request for a decision by a court of the matters submitted to it, based upon legal arguments only, where no material facts are in dispute.

"That's the way these cases usually proceed," Abell said. "Occasionally there are trials. If motions for summary judgment are not granted, the case is set for trial. A typical trial in this sort of matter generally lasts one to one and a half days; it's not a long lengthy type process, there aren't a lot of witnesses."

Abell explained a motion for summary judgment says to the court: "Judge, really the facts aren't in dispute, there's no real factual issues here. This should be decided as a matter of law and here's the law, by the way. And you should decide it in our favor because here are the cases that favor us."

The Metropolis City Council passed a sexually oriented business ordinance in February, which was to take effect Feb. 25. Ten days after the ordinance was passed, federal Judge J. Phil Gilbert in the U.S. District Court for the southern district of Illinois, located in Benton, granted a temporary restraining order against it following a Feb. 22 motion filed on behalf of the Metro Pony by John Schneider of the Cape Girardeau, Mo.-based Johnson & Schneider LLC.

In the 20-page brief supporting the plaintiff's motion for the temporary restraining order, Schneider submitted that the ordinance is "unconstitutional under the First and Fourteenth Amendments to the Constitution;" the ordinance "threatens to suppress protected expression and is poised to eradicate adult entertainment altogether in Metropolis;" the ordinance is "a law whose purpose is designed to drive (Metro Pony) out of business by suppressing the erotic message that it disseminates and destroying the business model on which it was founded;" and "the ordinance singles out the one business that it covers, to the exclusion of all others by requiring that it be licensed, by requiring that its employees be licensed, by compelling it to close at certain hours, which happen to be its main business hours, by subjecting it to unannounced inspections and by threatening them with closure if any provision of the 23-page (ordinance) is violated."

Two affidavits filed in the case have been made public. The statements were filed in early May and describe in graphic detail the experiences at the club of two private investigators licensed in the state. In part, both statements describe nude dancing and contact with patrons by the dancers; propositions to patrons; and beer brought to patrons by dancers and waitresses.

With the motion for summary judgment, Abell explained, "it really comes down to what was the purpose of the ordinance, what was the intent of the ordinance, was it to protect secondary effects, does the ordinance actually protect against secondary effects or attempt to without infringing too much on free speech," he said. "That's basically what the court is asked to rule upon — was this truly designed to curb secondary effects and if it was, does it do so in a manner that's not overly restrictive on freedom of speech. In other words, could someone have access to this kind of material or some of this sort of entertainment in spite of the regulations. For example, can you have exotic dancing and people be able to witness that and see that even with this ordinance?

"We believe the answer is yes," Abell continued. "The ordinance, what it seeks to do, is make sure they don't cross the line between exotic dancing over into prostitution or we don't have things like contact between patrons and dancers that leads to the spread of communicable diseases and things like that — those are those secondary effects. It doesn't keep somebody from witnessing the dancing. That's our argument basically."

Earlier this month, the city's insurance company picked up the defense of the case and hired Betty Knight, an attorney out of Rosemont, who primarily represents municipalities in First and 14th amendment cases.

"Scott (Bergthold) does all these adult business litigation for municipalities. Betty does more than adult businesses but freedom of speech, constitutional law violation cases," Abell said, noting Knight has researched the case and submitted a 10-page opinion "that says the case law is overwhelmingly in favor of Metropolis. She said the regulations in the ordinances in virtually every jurisdiction that have been identical to the ones in Metropolis have been upheld. Over and over again, she's advising me and the insurance company that this is a good, solid case.

"We've got opinions from two independent lawyers now. This is what they do," Abell said. "They both say it's a solid case. We'll see."

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