A recent story in The Chattanoogan reported that the Ohio State Court of Appeals has upheld a lower court ruling allowing the City of Cleveland to deny a business application to Mike Wade, owner of Babylon Adult Bookstore, who wanted to open a store in Cleveland.
The story claimed that the city referred to the store was a “sex outlet,” which Wade wanted to open within 750 feet of a residentially-zoned district in violation of a zoning ordinance.
Among Wade’s arguments, the story continued, was that the recent Tennessee Supreme Court case of City of Knoxville v. Entertainment Resources (2005) requires a finding that Cleveland's licensing and zoning ordinances are unconstitutionally vague. In the case, the Tennessee Supreme Court had invalidated a Knoxville ordinance for being impermissibly vague under the United States and Tennessee Constitutions.
The Knoxville ordinance was flawed because it used the phrase “substantial or significant portion of stock and trade” to define an adult business. In Wade’s case, his legal team attempted to challenge the ordinance by pointing out a similar flaw in that it defined “substantial” by using multiple criteria. “Which criteria should I use?” asked Wade, 20 percent floor space, 20 percent revenue, 200 items of inventory, which?”
The story continued by saying that the Appeals Court answered, “The Cleveland ordinance uses plain language.” “A business is considered a … ‘sex outlet,’ if that business has 20 percent of its floor area devoted to ‘sex media,’ or if 20 percent of its inventory are items of ‘sex media,’ or if 20 percent of its revenue comes from the sale of ‘sex media,’ or if the business has 200 units in inventory of ‘sex media’ or any amount of ‘hardcore sex media.’”
In the meantime, the story concluded, back in Knoxville, the City Council is hard at work redefining what constitutes an adult business in order to fix their zoning ordinance so that it can withstand future legal challenges.
