A topless club has asked a federal court to overturn a new state law that’s thwarted its plans to open in Tempe.
The corporation behind the proposed Elite Cabaret claims that a new distance requirement for sexually oriented businesses makes it impossible to open that kind of enterprise in the city, according to the lawsuit filed in U.S. District Court of Arizona.
Neither the state nor the city has banned the business outright, but the club’s owner claims the restriction violates the rights of free speech and equal protection by indirectly making impossible for adult businesses to open in the city.
Rep. Laura Knaperek, RTempe, who sponsored the law targeted by the suit, said Monday the legal fight wasn’t a surprise.
“We did expect to be challenged because I think we are the first,” Knaperek said. Arizona lawmakers researched other state laws before passing Knaperek’s bill earlier this year and found no other state had imposed distance requirements for strip clubs, she said.
Elite Cabaret’s suit claims the city dragged its feet in considering the business’ license because it had no other way to stop it. The city requires adult businesses to be at least 1,000 feet from parks, schools, churches, neighborhoods and several other kinds of development. The suit claims the business met this requirement.
However, the club’s owner claims that Tempe turned to Knaperek once the city realized it couldn’t legally stop the business. The lawmaker sponsored a bill for a statewide buffer of a quarter-mile — 1,320 feet — specifically to block this business, according to the suit.
Knaperek said the bill didn’t target Elite Cabaret. “I never even talked to the city about the bill,” said Knaperek, who represents Tempe and south Scottsdale. “This was a bill for the neighborhood. This was a constituent concern.”
Residents were upset about several types of businesses in north Tempe, she said. The topless club would be the first of its kind in Tempe, though the city has several adult clubs nearby.
The suit, filed last month under the club’s legal name, Idaho Business Holdings LLC, asks the federal court to overturn the state law. It also demands Tempe issue a license and pay damages.
The suit includes the following claims:
• The business filed for a license in November 2005. City officials replied that the business met the city’s requirements.
• Days later, the city told the club that an irregular parcel of land at Indian Bend Wash jutted toward the proposed business. The entire parcel was considered part of the park and put the proposed business within the 1,000-foot buffer. But the business could legally split the lot and use just part of it to comply with the distance rule.
• Elite filed a lot-split request Feb. 6, 2006.
• Knaperek proposed a new statewide buffer Feb. 16. The bill contained an emergency clause so it would take affect as soon as it was signed. Gov. Janet Napolitano signed the bill in April.
• Tempe denied the business a license in May without giving specific reasons.
• Tempe made the club reapply that month. The new application meant the club would have to follow the stricter distance requirements — which made it impossible to open.
The suit notes Knaperek’s bill was written as a “strikethrough” amendment, a procedural move where lawmakers take an existing bill, remove all the language and replace it with something that may have nothing to do with the original bill. Strike-through amendments are sometimes criticized as a technique to sneak controversial bills through the Legislature.
Knaperek denied using the strike-through to target Elite Cabaret, saying she already started writing the bill to address adult-business issues. She said she used the technique “because the bill was terrible” and needed to be completely rewritten.
“My bill was already moving,” she said. “I didn’t suddenly move my bill because of them.”
The Legislature’s online history of the bill, HB2490, shows it originally addressed sex offender registration but did not address the placement of adult businesses. Knaperek’s new language did not address sex offender registration but instead created the quartermile buffer.
Knaperek disagreed with the suit’s claim that her bill blocks people from constitutionally protected businesses. Cities and counties don’t have to use the distance and can set shorter limits if they chose, she said. And even if her law makes it impossible for an adult business to open in Tempe, Knaperek noted south Scottsdale has similar clubs.
“There’s lots of access for people to those businesses,” Knaperek said.
Tempe Mayor Hugh Hallman said Tempe recognizes that the U.S. Supreme Court has determined the First Amendment protects nude and topless clubs.
The city respects that, he said, but will also follow the state’s buffer law.