No Pain, No Gain

The Enclave has Commerce City fit to be tied.

"I presided over that hearing," says Councilwoman Reba Drotar. "That was an absolutely fair hearing."

Councilman Tony Johnson agrees: "Personally, I dislike that type of business, but there is a place for it, and they don't meet that criteria."

But Michael and Deb had known about the house before they bought the property and had asked planning officials if it would be a problem. They say Sitkoski had told them not to worry, that the home's owner ran businesses on the property, and according to city code, once a residence in an industrial zone is used for businesses that are normally allowed in that zone, its residential status is terminated.

Commerce City Assistant City Attorney Tom Merrigan disagrees with that interpretation. "We don't use our zoning to drive them out of town, but we also don't want them in an average subdivision. Right next door to the Enclave is a house. And that, of course, sends up a big red flag," he says. "Based on what I've heard, it sounds like [the businesses on the property] could well be something you have in a residential use."

That comes as news to Mel Summers, longtime owner of the property in question. "We are zoned industrial," he says. "They are going to have difficulty calling it a residence, because when I tried to refinance the house as a residence, they said, 'No, it's industrial, and we want to keep it that way.'" That's why, twelve years ago, he registered the lost-luggage delivery service he ran out of the property as a business, not a home occupation, and that's why he recently did the same for the new business venture located there, a company that provides armed security guards and installs security cameras.

Commerce City has no record of the luggage-delivery business license; it may have been lost to time, officials say. They're currently processing Summers's license application for his new business.

In the years since the Enclave has been open, Summers has had no problem with the club. "They are a good neighbor," he says. "They only occupy the place a couple of times a week. They don't park on my yard, they don't throw beer cans, I don't hear yelling and screaming. They are a very quiet bunch."

That didn't matter when Michael and Deb appealed Commerce City's SOB license denial to Adams County District Court. In November 2005, the court found that the city could consider the house next door as part of the license-denial appeal process. But Michael and Deb didn't think the judges had given adequate consideration to whether the nearby house was an appropriate justification for a denial. So they appealed again, this time to the Colorado Court of Appeals.

In the meantime, they say, Commerce City continued to screw with them. Although city code required that they be issued a provisional SOB license pending the results of the appeal, Michael had to fight with Commerce City officials to get it. The couple was also told that recordings of their city council hearing didn't exist -- either the recording device hadn't been turned on properly in the first place, or the tapes had been thrown away in routine housekeeping -- even though those recordings were relevant to their appeal. A police officer stopped by Summers's place to warn him about the Enclave, saying she'd heard the club involved "goths and dead rats hanging from the ceiling."

As a former cop and lifestyle dominant, Michael believes in process and structure. But eventually, even he had had enough -- and the couple hired attorney David Lane to investigate whether they should file a federal civil-rights lawsuit against Commerce City, whether or not they win the SOB appeal. "I am a law-and-order guy. I thought if you did everything right, the system worked," Michael says. "But we did everything right, and the city broke a stick in our ass. All of a sudden, it's dawning on me. This is personal. It's content. It's morals. They are trying to change their image and put a better face on Commerce City, and maybe we don't fit into that plan."

While last week Commerce City residents overwhelmingly voted down a proposal to change their town's name, the fact that the proposal was on the ballot at all showed that a conscious effort is under way to clean up the image of Commerce City. "They realized having an S&M club would offend people in power in Commerce City, so they backtracked," says Lane. "Cities traditionally have used zoning as an excuse to zone out people that they don't like. That's what this is all about. If they make one move to shut them down, they are going to court."

So even if Michael and Deb obtain an official SOB license, they refuse to rely on the city's current adult-entertainment rules for legal protection. "Once the city acknowledges we have a right to be here, we will look at its administrative processes to add a category to the adult section of the code that addresses our use," says Michael. After all, the Enclave doesn't truly qualify as a strip club, an adult bookstore or anything else currently listed under the city's adult-entertainment definitions.

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