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Judge denies Tops Showbar request

By Joel Hall

jhall@news-daily.com

A federal judge has denied Tops Showbar Owner Terry Stephenson's request for a preliminary injunction that would have allowed him to open a strip club in a building in Forest Park once occupied by another club, that has since moved next door.

The ruling, handed down Wednesday by U.S. District Judge Richard W. Story, was Tops' second defeat this week, after the City of Forest Park denied the club's long-standing request for an adult entertainment license to operate at 3950 Jonesboro Road.

The two actions for now keep the number of nude-dancing establishments in the city at two - the Crazy Horse Saloon and Pink Pony South.

In a hearing in Atlanta on April 28, Alan Begner, Stephenson's lawyer, argued that the city improperly delayed voting on Tops Showbar's request for an adult license and improperly denied its application for a permit to serve alcohol. On Wednesday, Story ruled that "a preliminary injunction is an extraordinary and drastic remedy" and that Begner's argument "failed to meet the burden of demonstrating a substantial likelihood of success on the merits."

The judge further stated, "Any subsequent adult entertainment application by Tops would violate the distance requirement provision contained in the ordinance." According to Forest Park City Attorney Robert Mack, the city's adult ordinance prohibits any two adult establishments from operating within 1,500 feet of each other.

If allowed to open at 3950 Jonesboro Road, Tops Showbar would operate next door to the Crazy Horse Saloon, presently located at 3920 Jonesboro Road.

Mack said he sees the ruling as a victory for the City of Forest Park, in its efforts to limit the number of adult establishments operating in the city limits.

"The ordinance speaks for itself," Mack said. "The judge was correct in his assessment of the case. For future litigation with Tops, I believe it does give us better footing."

Begner said he is "disappointed" with the ruling, but plans to ask the judge to reconsider.

"We're going to try to overturn the denial by asking the judge to reconsider it," he said. "We are also considering filing an appeal with the U.S. 11th Circuit Court of Appeals. I think we're going to ask him to reconsider some of the facts that he may have missed."

In March of 2008, Tops Showbar applied for a license to operate an adult establishment, and a license to serve alcohol, at 3950 Jonesboro Road, after learning the Crazy Horse was moving out. The Forest Park City Council voted unanimously Monday to deny the request for an adult license. The Council voted in February to deny a permit to sell alcohol.

Last July, Red-Eyed, Inc., the company under which the Crazy Horse is operated, applied for adult entertainment and alcohol licenses for its new location, which were granted in August, according court documents.

Forest Park City Manager John Parker said Tops' adult-license request had been tabled multiple times at the request of Stephenson's attorneys.

"We had it on the agenda at least twice last year, and their attorneys asked that it not be considered," Parker said. "To accommodate their requests, we took it off the agenda. It finally got to the point where the council had to clean up all the strings that were hanging out there."

Begner said he believes his client is entitled to a license due to the fact that the city's new adult ordinance, established in March of this year, states that an adult business is allowed operate "when the Chief of Police or his designee fails to approve or deny an application for an adult entertainment license within the 30 day period."

"The old ordinance has been repealed," Begner said. "In the new ordinance, they [the city] have 30 days to deny or accept an appeal or it is automatically granted. Although the application has been pending with the old ordinance for over a year, it has been pending with the new ordinance for over 30 days."

Mack said he doesn't believe Begner's argument is valid, because The Crazy Horse Saloon was still operating in its previous location when Tops Showbar applied to operate an adult establishment there.

"At the time they applied in March [of 2008], the location already had a tenant there," Mack said. "We couldn't give them a license because a tenant was already in that spot."

Begner said he is presently responding to a recent motion by the city to dismiss the lawsuit and plans on continuing to fight to establish the strip club.

"We fully expect to open one of these days and sue for damages," he said.

"At this point in time, the judge has ruled favorably to the city," Parker said. "We have to wait until the litigation is terminated, then we will have to take whatever decisions are made, and move from there."