The zoning code steps on businesses' ability to have freedom of expression, the court decided.
By BOB JACKSON
VINDICATOR COURTHOUSE REPORTER
YOUNGSTOWN -- A federal court ruling has cleared the way for two sexually oriented businesses to continue operating in Austintown Township.
In a ruling handed down this week, Magistrate George J. Limbert of U.S. District Court, Youngstown, struck down as unconstitutional a section of the township zoning code that requires conditional-use permits for such businesses.
That section is too vague and gives the township too much latitude to determine which businesses can receive a permit to operate, which opens the door for discrimination against certain types of businesses, Judge Limbert wrote in his opinion.
Protected: He said it violates the businesses' First Amendment freedom of expression rights. The U.S. Supreme Court has ruled that nude dancing, which is featured at both clubs, is a form of expression protected by the First Amendment, Judge Limbert wrote.
"An ordinance that gives public officials the power to decide whether to permit expressive activity must contain precise and objective criteria on which they must make their decisions," the judge wrote. "An ordinance that gives too much discretion to public officials is invalid."
The township's conditional-use permit standards are so broad that they would empower the township to not only eradicate existing sexually-oriented businesses, but to thwart other such businesses from "cropping up" in the township, the opinion says.
"We've said all along that the code was too vague," said Atty. Scott Cochran, who represents Club Babylon owner Nick Ellinos.
Club Babylon on Javit Court and the Rebel Lounge of Seventy-Six Drive had been ordered by the township to obtain a conditional-use permit to continue operating. Owners of both clubs sued, saying the zoning code "allows for unbridled administrative action," court records say.
The township had agreed to allow the clubs to remain open while the court case was pending. The ruling means they can continue operating without interference from the township, Cochran said.
Remaining questions: Atty. Stephen R. Garea, who represents Rebel Lounge, said the only issues now are whether the township will appeal and whether it will be ordered to pay legal fees for the two businesses.
Township Administrator Michael Dockry declined to comment because he had not seen the decision. The township's attorney, Abraham Cantor, could not be reached to comment.