Regulating sex: Uncharted waters in the suburbs

WEST CHESTER TOWNSHIP, Ohio — The chairman of West Chester Township’s Board of Zoning Appeals cleared his throat. He asked anyone leaving the January zoning meeting to do so quietly.

Melissa Warren stood up. She didn’t say a word.

She didn’t have to.

A woman in the back of the room spoke for her.

“Quietly?” the woman said. “No. Your appeals process is crap."

Warren attended the zoning meeting on Jan. 13 because she owns the Champagne Club in Fort Wayne, Ind.

"We like to call it a lifestyle club," she told police conducting a background check on her in October. "But it is also known as a swingers club."

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Members have also called it a Disneyland for adults.

Three months ago, Warren invested what she said was her life savings to open another club with her fiancé in West Chester Township, a Cincinnati suburb. With a location secured, she only needed a zoning permit and license to operate a "sexually-oriented business."

After several meetings and discussions with township officials, she got the permit and license with no resistance. In fact, when the general public found out about Warren’s plans, the township defended her. Officials said she did everything right.

A week later, Community Development Director Michael Juengling rescinded Warren’s license and permit.

A few hours before that, Township Trustee George Lang responded to a resident’s angry email — one of the several irate communications he and other trustees received at the time.

Lang's response, obtained by The Enquirer through a public records request, is an example of how quickly the township changed its mind about Warren and her business.

"I am in full agreement with you on this issue," Lang wrote in the email on Nov. 13. "We are in the process of actively fighting this business."

While the harsh public outcry was predictable, the township's response was more curious. A week before Lang sent that email, officials publicly defended Warren and her fiancé, Eric Adams. They did so in private, too.

"I hear you," said Township Administrator Judi Boyko in a Nov. 4 email to a nearby business owner. "I want to address your concerns, but the township must act consistently with Ohio and local laws."

By rescinding Warren's permit and license, they failed to do so, several legal experts told The Enquirer. The township’s decision — and the action they took to make sure Warren could not reapply — are both legally tenuous and unprecedented, experts say.

The township is now defending its reversal in court.

Their defense? We screwed up.

'PEOPLE LOSE THEIR LIVELIHOOD BECAUSE OF THIS'

Warren says that, because of the township's actions, she is stuck in a multiyear lease, out about $100,000 and struggling to understand what went wrong.

Warren is running into something that has plagued businesses dealing in sex for decades. Local governments — and the officials elected to govern them — don’t want these businesses around, according to Judith Hanna, a professor at the University of Maryland.

Hanna has testified as an expert witness in more than 150 court cases involving sexually oriented businesses. She even wrote a book about her experiences.

"When you read my book you think it is a humor book, except it is for real," she said. "People are hurt and people lose their livelihood because of this."

The majority of the cases she testified for involve strip clubs, which Supreme Court rulings protect because of First Amendment rights.

Menelaos Triantafillou, a professor at the University of Cincinnati who teaches courses in planning and urban design, explains: "The only thing you can regulate is not the use itself," he said, "but the specific location."

Local governments typically allow these businesses to exist in industrial areas. Restrictions are placed on how close they can be to other establishments such as schools and day cares.

But a swingers' club, West Chester Township argues, is different.

Officials there believe a swingers' club could be considered a "sexual encounter establishment." A sexual encounter establishment is defined in the Ohio Revised Code as a business where "two or more persons may congregate, associate, or consort for the purpose of engaging in specified sexual activities."

This legal definition provides the business less constitutional protection, township officials say, and could likely get it banned altogether.

Here’s the problem: There is no legal precedent for it.

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That’s according to Eric Kelly, a professor at Ball State University who has written a book about regulating sex businesses. Kelly has drafted legislation for several communities in Northern Kentucky and is often lauded for setting tight restrictions on these businesses.

He agrees swingers' clubs and other businesses like it should get less protection from the First Amendment. The idea is that strip clubs involve dancing, which higher courts have ruled to be performance art. That means those businesses and their dancers are protected from governments trying to keep them out of communities altogether.

But what about businesses such as the one Warren proposed?

"The law on that is not clear," said Kelly.

Less than a week after rescinding the license, trustees passed a nine-month ban on sex businesses like the one Warren proposed. When voting on the legislation, Trustees Lang and Mark Welch voted yes by saying, "absolutely."

Attorney Tim Burke, who represents Warren, told The Enquirer this is a clear example of township officials attempting "to take advantage of their own mistakes to do damage to these folks who were doing everything legally correct."

During that January zoning meeting, director Juengling told the rest of the board members he screwed up. His department made a mistake. The zoning certificate should never have been issued because the township didn't have enough information to do so.

On Nov. 12, West Chester officials received a letter from Ohio's Bureau of Criminal Investigations. It said an FBI background check conducted on Adams, Warren's fiancé, revealed he may not qualify for a sexually oriented business license.

The letter didn’t provide specifics but raised questions about Adams and his potential criminal background. The problem: Only Adams himself could request complete information from the FBI.

Adams moved fast, but the township moved faster. The next day, before Adams received anything from the FBI, the license was revoked.

Juengling and other West Chester township officials said the letter meant they didn't have all of the required information when they originally approved the permit and license to operate. Therefore, they should not have been issued in the first place.

But West Chester police had already investigated Adams and Warren's club in Indiana, which has been open for about four years. A vice detective with the Fort Wayne Police Department said the business appeared professionally run. He said police have had no issues with it.

When Adam received his complete FBI report, it showed he had done nothing to be disqualified. He then hand-delivered it to township officials. The report listed a criminal trespassing conviction from 23 years ago and an unconvicted domestic battery charge from 14 years ago. Neither disqualified him from operating a sexually oriented business.

In addition, the document says the FBI record cannot be used to disqualify an applicant until he or she is given the opportunity to complete or challenge the record.

That didn't happen here.

Instead, township trustees enacted a ban on sexual encounter establishments so Adams and Warren's permits and licenses could not be reinstated.

The matter is set to go before Butler County Judge Craig Hedric on Feb. 16.