The Journal Gazette
Saturday, July 21, 2018 1:00 am

City sued over denying strip club

Officials claim Rabbit's abandoned status

MATTHEW LEBLANC | The Journal Gazette

A federal lawsuit challenges a city ordinance regulating sexually oriented businesses, arguing it was applied unfairly and prevented the planned reopening of a downtown strip club.

The lawsuit filed in U.S. District Court in Fort Wayne argues the ordinance is unconstitutional and should be scrapped. The city, Mayor Tom Henry and Board of Zoning Appeals officials are named as defendants.

At issue is a board decision last month to affirm an earlier decision by Zoning Administrator Kimberly Bowman that the club at 1407 S. Calhoun St. abandoned its nonconforming use in late 2017.

Downtown core zoning bars sexually oriented businesses, but Rabbit's was grandfathered under an exemption to the city law for pre-existing nonconforming use. The club closed in November 2016, and its owners said in court documents they intended to reopen within a year to ensure its nonconforming use status would remain.

Fort Wayne's Finest DT Inc. poured more than $230,000 into renovations inside the club and emailed city officials Nov. 15, 2017 – 10 days before the one-year deadline – about final inspections.

Earlier inquiries were not answered by the city, according to court documents.

Bowman ruled Dec. 1 the nonconforming use status had been abandoned.

“At no time during the course of the renovation to the property was there any intention expressed by Fort Wayne Building or Fort Wayne's Finest DT Inc. to abandon or relinquish the valuable nonconforming use status of the property as an adult cabaret/nightclub,” the lawsuit states. “Indeed, all communications with the city expressed precisely the opposite intention.”

The lawsuit contends another nonconforming business – Club 44, near Glenbrook Square – was allowed to reopen after a longer period of inactivity.

Lawyers for 1407 LLC, which owns the club, say in court documents that decision and the ordinance violate protected rights to free speech and equal protection under the law.

John Perlich, a spokesman for the city, said in an email he believes the ordinance will stand up to court scrutiny. He declined to discuss the lawsuit.

Rabbit's asks a judge to declare the city law unconstitutional. It also seeks $500,000 in damages.

The club is represented by Berkman, Gordon, Murray & DeVan of Cleveland and Tourkow, Crell, Rosenblatt & Johnson LLP of Fort Wayne.

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