TECHNICALITY LIKELY TO END FUN AT FUN FACTORY

An amusement center owner's days of fun in Cape Girardeau may be numbered.

Long-term plans for operating the Fun Factory are dead, owner Marion Williams said, pending a hearing before the Missouri Appeals Court that will determine whether his business violates a restrictive easement being enforced by neighboring K's Merchandise Mart.

"I had to quit making advertisements," said Williams, a 65-year-old farmer who lives in Olive Branch, Ill. "It's a waste of money when you might be closed any day."

K's won its lawsuit against the Fun Factory at 301 S. Broadview and property owner Sandy McLane last August when Circuit Judge John Grimm decided that a prohibition against a non-retail business operating video games, pool tables and other amusements was legally binding. The two businesses are about a quarter-mile apart on Broadview.

Although Williams interprets the essence of the restriction as keeping delinquents out of the area, he said the court stuck to the letter of the law.

"It's just on account of the agreement they have -- no pool tables, no video machines," he said. "I've got all of that."

The restrictive easement puts limits on a large area of property, the central parcel which was bought by K's in 1996 from Central Hardware Co. The property is considered prime for development.

Attorneys for both Williams and McLane had argued that the language of the restriction was vague, and that the Fun Factory is a desirable business neighbor.

"It brings the same type of people to their establishment that K's tries to establish through their many dollars spent through advertising," said McLane's attorney, Daniel Finch, during a hearing last year.

The Fun Factory's indoor train and other children's rides, along with an area for laser tag, gives Cape Girardeau a unique entertainment option, said Michael Maguire, attorney for Williams.

But McLane had already signed a consent agreement recognizing the restrictive easement in 1996, K's attorney Steven Hamburg of St. Louis said at a hearing in Cape Girardeau last year.

Williams said he was never made aware of the restrictive easement when he signed a lease agreement with McLane in February 1999. In her court testimony during the lawsuit, McLane stated that an attorney had told her to ignore the restriction.

McLane testified she gave Williams the same advice when he received a notice from K's attorney in August 1999 informing him that his business violated the easement.

$500,000 spent

By that point, over $500,000 in renovations had been done to the building, Maguire said.

Neither McLane nor her attorney returned calls Tuesday regarding the lawsuit.

Williams started renovations on the building almost immediately after signing a lease with McLane. Contractors were coming and going and trailers were parked in front and behind the building for four months before a K's manager inquired about the development, court records state.

Williams had operated a similar amusement center in Clarksville, Tenn., but chose to relocate to Cape Girardeau because he believed it had greater potential.

At the end of last month, Williams filed his own lawsuit against McLane alleging that she is liable for not telling him about the restrictive easement. Williams said the suit seeks to recover some of the money he expects to lose when the Fun Factory is forced to close.

More than $1 million has been invested into construction and equipment for the Fun Factory, Williams said.

Now he keeps his expenditures more modest. T-shirts carrying the Fun Factory name are purchased in lots of 48 rather than 500 or more. It would be cheaper to buy in bulk, but Williams said he doubts his business' future.

"It doesn't look good," he said.