Fascinations sues Lone Tree

Adult merchandiser says ordinance unconstitutional

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Fascinations adult merchandiser filed a suit against the City of Lone Tree for a hasty change in its rules that barred the business from its family-friendly Entertainment District.

The only information available about the case is from a U.S. District Court filing that pits BH Ventures, dba Fascinations, against the city. Fascinations representatives did not return calls for comment. And city officials, who discussed the suit during a Feb. 19 executive session, are saying little.

“We will vigorously defend our ordinances,” said City Attorney Neil Rutledge.

But the documents say plenty. In them, Fascinations claims Lone Tree cost it thousands in earnest money, architectural fees and potential business and deprived the company of rights guaranteed by both the state and U.S. constitutions.

Fascinations wants portions of the city’s municipal code and the ordinance regulating sexually oriented businesses declared unconstitutional, as well as an unspecified amount of money for both perceived damages and attorney’s fees.

Fascinations proposed in mid-2012 converting the former Blue Rox restaurant in Lone Tree’s Entertainment District into a store selling lingerie and sexual devices, among other items. The city council approved an application last month from pizza restaurateur Mellow Mushroom for that same Park Meadows Drive building.

In accordance with state law, the city designated an area north of C-470 near Home Depot for sexually oriented businesses. That area is more appropriate for such a use than the movie-theater-anchored Entertainment District, officials believe.

Fascinations already had obtained a business license, paid a $15,000 non-refundable deposit and scheduled a June 29 closing on the property when its plans in the Entertainment District were halted, according to the court documents.

On June 26, eight days after Fascinations submitted a site improvement plan, the city council adopted an emergency ordinance that changed the definition of sexually oriented businesses. It effectively disallowed Fascinations from moving forward with its plan.

The amended ordinance expanded the definition of sexually oriented businesses to include those selling sexual devices, in addition to the already included adult books, novelties and videos. It also defined such a business as one that devotes at least 5 percent of its stock or floor space to, receives at least 5 percent of its revenues from or spends at least 5 percent of its ad revenue on sexual devices or items related to sexual activity.

Fascinations claims the stricter ordinance was adopted despite its offer not to sell any DVDs, videos or publications in its proposed Lone Tree store that would meet the city’s definition of adult materials.

City Manager Jack Hidahl told a Fascinations representative that council members were concerned about the proposal, “and since Lone Tree was a conservative town, this business did not belong in Lone Tree,” according to the documents.

When the representative said the store wouldn’t sell sexually explicit media, Hidahl said opening the business would nevertheless be “an uphill battle,” the filing reads.

Fascinations claims it was denied the opportunity to offer “constitutionally protected entertainment,” and that Lone Tree’s desire to maintain its Entertainment District’s family-friendly atmosphere “is not a valid governmental interest to justify the heavy burden the ordinance places on individual rights of liberty and privacy.”