Nebraska strip club plans spark review of adult entertainment zoning

Shane Harrington's Paradise City in Elm Creek, Nebraska. (Photo by Bill Kelly, NET News)
Harrington testifies before the Hall County Board of Supervisors. (Photo by Bill Kelly, NET News)
Paradise City near Elm Creek, Nebraska. (Photo by Bill Kelly, NET News)
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November 10, 2015 - 6:45am

One man’s plan to open a set of strip clubs along the I-80 corridor in Nebraska is forcing two counties, and perhaps several others, to reexamine the zoning laws used to regulate adult businesses.

For much of the year Shane Harrington of Lincoln battled with officials in Hall and Seward Counties over zoning regulations restricting adult entertainment businesses to only a handful of potential locations. A lawsuit filed in the U.S. District Court of Nebraska accuses the county boards of using land use regulations to block Harrington’s plans for a club by blocking him from nearly all land options, resulting in a violation of the First Amendment right of his performers to express themselves.

Shane Harrington (left) testifies before the Hall County Board wearing a video camera on his hat to record the proceedings. Attorney Vincent Valentino, hired by the county to revise the zoning code, listens.

Hall County Board Chair Scott Arnold.

(Photos by Bill Kelly, NET News)

Having announced plans for up to six sites in central and eastern Nebraska, neighboring counties are watching the negotiations and resulting lawsuit closely.

Harrington, who claims he made millions managing a Nebraska-based porn site, made news in 2006 when his primary model and wife at the time was found guilty on public indecency charges in Lancaster County.

“If you ask Lincoln, I'm the porn guy,” Harrington said. “I believe that I'm just a business entrepreneur.” 

Earlier this year he purchased a strip club, in his words “in the middle of nowhere.” Paradise City sits at the I-80 interchange at Elm Creek, just west of Kearney in Buffalo County.

Harrington hopes it’s the modest start of a whole string of clubs along the interstate, “from here (at Elm Creek) all the way into Iowa is pretty much where we want to be.”

The plan stalled with attempts to buy locations for clubs near Grand Island and Seward when local officials claimed he would be in conflict with zoning regulations.  

“They have only provided a miniscule amount of land that allows for any sexually-oriented business, which includes a strip club,” said Evan Spencer, Harrington’s New York-based attorney.

“In Hall County where they have, I believe, somewhere over 50,000 acres, they've designated only 300 acres of industrial land for adult businesses.  And in Seward County it's even less,” Spencer said.

The result, according to Spencer, has the same effect on his client’s free speech rights as a flat-out ban.  

“There is no freedom of speech for adult businesses because they cannot open anywhere,” Spencer said.

“Hall County didn’t have enough land to allow it,” conceded Scott Arnold, the chair of the Board of Supervisors. “We needed to address that. We knew that.”

In response, new regulations were drafted and submitted for approval to zoning officials and the Board of Supervisors.

On paper the new approach seems to be a dream for those wanting to open adult entertainment businesses in the county. 

The amount of land zoned for adult-oriented business use jumped from the 300 acres to nearly 9,000 acres by adding types of agricultural land to the list of permitted sites.

In addition adult businesses can open without applying for a permit. Instead, owners will be subject to new regulations governing how they conduct their business.

However the new rules are in sharp contrast to Shane Harrington’s plans for strip clubs.

In Hall County no nudity would be allowed. Closing time would be midnight. Customers would be forbidden to touch the performers and the audience kept six feet away from the stage.

At Harrington’s Paradise City, dancers “can actually can do full nude and the girls can have contact interactions with the customers” according to the owner, because the club does not serve alcohol and thus is exempt from the rules of the Liquor Control Commission. He also does a substantial business by staying open until 3 a.m. and entertaining customers after the closing hours of most bars.

His attorney says the regulations, due for final approval before the end of the year, “are making it more restrictive while they're trying to give the appearance of opening up” the opportunity for adult enterprises.

“No business could operate under the rules that they are proposing and that's why they're doing it,” Spencer said. “They're trying to say to the court and the public that we're opening up the land to comport with constitutional scrutiny but in reality the rules make it such that nobody would open a business under those conditions.”

The attorney who prepared the new rules for Hall County, Vincent Valentino, told the board at a public hearing the regulations were modeled after those used by the City of Lincoln. Club owners have already challenged the restrictions three times he said, giving him confidence they would hold up under the scrutiny of the federal court reviewing the Hall County case.

After losing the first case the City of Lincoln “went back, returned it, modified it, that case went up and (the judge) said you did it right, leave it alone,” Valentino told the supervisors.

Part of the 9,000 Acres to be rezoned for adult entertainment in Hall County.

In Seward County, a former dinosaur museum is one parcel considered for a strip club location.

(Photos by Bill Kelly, NET News)

The acres of land Hall County made available for adult business establishments are also not to Harrington’s liking. They are all within the boundaries of the former 20-square mile Cornhusker Army Ammunition Plant west of Grand Island, miles away from prime sites along the busy interstate.

At the November 3rd public hearing Harrington railed at the supervisors for adding land with few paved roads and easy access for potential customers.

“I’m opening a business. I’m not opening something that needs to be thrown out in the middle of some farmland,” Harrington testified. “You guys may not agree with it, but it’s a legal business. And so it belongs in the same area as other legal businesses.”

“We believe we are within our rights and our counsel is telling us we are within our rights,” Arnold said after the first approval vote on the zoning change.  “Other communities have the same regulations and other (adult) businesses find ways to make money with those regulations in place.”  

Some Hall County residents had lobbied the county to block establishing any adult entertainment business in the county. Petitions urging a ban were circulated by church groups.

Federal court rulings spanning the past four decades say banning clubs is not a legal option.

“People have a right to free speech and courts have unique ways of determining what speech is and being naked sometimes is free speech according to them,” Arnold said, adding with a smile, “Go figure.”

Backed by rulings in federal and state courts, Harrington’s attorney said local governments may not use zoning to forbid adult entertainment.

“It's not our decision, it was the founders of our country who added the First Amendment to the Constitution,” Spencer said.  “The same amendment that gives us freedom of religion to the religious people in Hall County gives Shane and his dancers and everybody else freedom of speech.”

The courts have upheld the authority of local governments to regulate strip clubs as long as officials are not attempting to interfere with the content of the entertainment.

“There definitely is not a one size fits all,” according to Eric Kelly, a professor of urban planning at Ball State University in Muncie, Indiana. “You have to find a way that it fits the community, minimizes the disruption to the community but you do something that is constitutional.”

Kelly, who wrote a book on zoning and adult entertainment, consults with local governments preparing land use plans and tells communities that the only way to regulate strip clubs is to allow them in the first place.

“If you adopt regulation saying you wont allow them it's unconstitutional and if you simply ignore them then a strip club comes in as some other kind of night club and you have no control whatsoever.”

Federal courts have been in general agreement that local governments can regulate activity at the clubs including the time, place and manner of activity. That can include everything from hours of operation to the height of the stage used by the dancers.

When consulting with city and county officials he becomes a “very big advocates of keeping the performers on stage and the audience in the audience” as a way to limit behavior “most communities don’t want having and they fear that from having this kind of establishment.”

“The more physical interaction you have between performers and audience, the more potential there is for exchanges of sex and drugs or whatever,” Kelly said. He had no role in developing Hall County’s zoning plan.

The intent of any regulation, according to Kelly, should be to limit “secondary effects” of the businesses, including minimizing the impact on property values, the potential for increased crime and negative behavior that comes with alcohol consumption.

Harrington has said repeatedly his club in Elm Creek has had no issues requiring a response from area law enforcement.

As the rule changes make their way through the approval process in Hall County, Harrington appears determined to push ahead with his lawsuit. He stormed out of the last public hearing shouting “we’ll see you in court for about ten years!” His attorney added “what a joke! This is the United States of America?” before slamming the hearing room’s door.

In early November the Seward County Commissioners unanimously approved similar regulations submitted by Valentino. The county is also named in Harrington's federal lawsuit.

Sometime in December Harrington plans doing business in a new club. He’s keeping that location a secret.

(Editors Note: This article was revised to update and clarify the current standing of the adult entertainment ordinances in Seward County)



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