FIRST AMENDMENT LAYWERS ASSOCIATION
2008 Winter Meeting
Cabo San Lucas, Mexico
Nude Dancing An Update
ALAN I. BEGNER
BEGNER & BEGNER, PC
1280 West Peachtree Street
Suite 230
Atlanta, GA 30309
(404) 872-5727
(404) 872-5763 fax
[email protected]
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ADULT NIGHTCLUB UPDATE
Prepared by Alan I. Begner
January 2007
1.
2216 SA, Inc. v. Ohio Liquor Control Commission, 2007 WL 4532701 (Ohio
Ct. of App.) Decided December 27, 2007.
This very good decision is a rare reversal of a non-renewal of alcohol
licenses on a no “evidence of some weight” standard. At issue is whether the
Clubs alcohol licenses should be renewed for 2003 through 2005. This unnamed
Columbus adult club drew complaints for noise, loud music, fights, gunshots,
litter, prostitution, public urination, and public intoxication in and around the
premises. In 2002, club employees had been convicted of sex for money crimes.
At the evidentiary hearing Columbus police officers painted a lurid picture of bad
conduct in 2001 and 2002; including the sharing of a birthday cake with
marijuana. Women stood out in the street soliciting oral sex, which they
performed in customer cars in the parking lot next to the club. In December 2002
the present manager replaced the bad one. The hearings on non-renewal did not
take place until June 2005, with an adverse decision in December 2005. The trial
court upheld the decision, leading to this second appeal.
The standard of review at the trial court level is whether the agency’s
order is supported by reliable, probative and substantial evidence. Substantial
evidence is evidence with some weight. At the Court of Appeals level the
standard is abuse of discretion. The Court of Appeals found that by January 2003
everything had been cleaned up. Based on the record, there was no evidence that
the club would currently interfere with neighborhood life since the renewals at
issue were for 2003 and after. Finally, the commission abused its discretion. The
commission heard no evidence of wrongdoing after the change of managers.
2.
Pooh-Bah Enterprises Inc. v. County of Cook, 2007 WL 4526527 (Illinois Ct.
of App.) Decided December 21, 2007.
Chicago and Cook County enacted an ordinance imposing an 8 percent
amusement tax on patrons of sports, theaters, movies, circuses and adult
entertainment; but exempted other live theatrical, musical or cultural
performances that took place in small venues. Crazy Horse Too convinced the
Court of Appeals that the ordinance was content based; did not serve a
compelling state interest, and therefore violated the First Amendment.
There were two separate problems found in the ordinance. Although the
tax is also aimed at other activity, all small venue live performances are exempted
if performed with clothes on. Secondly, all speaker-based taxes are suspect,
including taxing speakers with unpopular, annoying or distasteful views; and
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gross receipts taxes derived from advertisements carried in newspapers. Both are
restraints on speech
3.
ASF, Inc. v. City of Bothell, 2007 WL 4418630, (W.D. Washington). Decided
December 17, 2007.
Bothel Washington licensing and zoning officials play the usual game of
no good deed goes unpunished. Plaintiff visited the licensing office to tell
officials he planned to open an adult entertainment club/restaurant; was given an
application for the license sought; and witnessed Ms. Aaby call around to other
departments to make sure no other forms were needed. Upon his return two days
later Nancy took the completed application and fee and said the adult license
would issue within a few days. A month later the City passed a moratorium on
accepting applications for adult entertainment for six months. Then the City wrote
Plaintiff to say it had only filled out an application for a general business license;
but had not applied for the adult entertainment license which was now covered by
the moratorium. A second moratorium was enacted to cover another year
thereafter. The stated purpose for both was that the City needed the opportunity to
more thoroughly consider all aspects of zoning, licensing and other regulations
relating to adult entertainment and that public health, safety, welfare and
economic viability require a plan for adult entertainment facilities.
The case is before the U.S. District Court for Plaintiff’s summary
judgment motion. The Court denied summary judgment finding questions of fact
still exist as to the first moratorium. There was no cross-motion. Included is an
overview of the constitutionality of the lengths of moratoria. 17 years is too long.
18 months is too long when combined with unbridled discretion. There was no
challenge to or discussion of what reasons are constitutional. (Emergency vs. fix a
broken law). Finally, the Court struck the second moratorium as a prior restraint,
noting that it had no time limits for processing or right to judicial review.
4.
Illusions-Dallas Private Club, Inc. v. Steen, 2007 WL 4380132 (N.D. Texas).
Decided December 13, 2007.
On March 15, 2007, the 5th Circuit handed Mike Murray a neat victory. It
found that state law banning alcohol at private adult clubs had failed to justify a
substantial governmental interest because studies introduced at trial were hearsay;
and the trial judge had struck them from the record. The state had not appealed
the evidentiary ruling. A discussion is in my update of Summer 2007.
Now the case is back before the Northern District of Texas on the State’s
motion to reconsider the Court’s striking of the studies; and to add additional
exhibits to the state’s final trial exhibit list. The Court allowed the case to be
reopened, but the fireworks didn’t explode until the pre-trial conference shortly
thereafter. Defendant’s counsel told the Court his expert had unexpectedly
withdrawn, leaving the State without the evidence the Court had allowed the State
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to add for trial. Roger Albright and Mike Murray moved to deny a replacement
witness because under Rule 26(a) the State had missed the first deadline for even
identifying the initial expert (Peter Malin) or submitting an expert report. The
Court allowed the substitution, continuing the trial to give the Club time to take
the new expert’s deposition. Guess who was identified as the state’s new expert?
The State also filed a motion to amend the trial exhibit list, which was granted
before the Club could timely respond. Then the Club filed a Motion to reconsider
allowing the amendment, claiming prejudice because the Bergthold/McCleary
documents would force the Club to radically reformulate its trial strategy. The
state failed to respond. The Court then rescinded its order allowing the McCleary
studies/evidence on the amended trial exhibit list. The State then filed its own
motion to reconsider, stating that Murray would not be sandbagged or forced to
radically reformulate its trial strategy. Bergthold, McCleary and Murray had been
squaring off all over the country on the same issues and studies. The
studies/evidence were again allowed on the amended trial exhibit list.
The trial court was livid. (Ignoring the notion that the Peter Malin
presentation was completely different then the McCleary one!) Our brothers are
blasted for crying undue prejudice. The Court accuses them of a thinly disguised
attempt to achieve a favorable judgment on process rather than substance. The
Court will not permit such gamesmanship. The Club’s counsel were directed to
review Rule 11 and Local Disciplinary Procedures before they again attempt
gamesmanship.
5.
Norfolk 302 LLC v. Vassar, 2007 WL 4190800 (E.D. Virginia). Decided
November 21, 2007.
Have A Nice Day Cafe operates adult entertainment establishments in
Virginia Beach and Norfolk, Virginia. The state ABC Alcohol Control Board
enacted a statute regulating the dancers message but had not gotten around to
reading Giovanni Carandola, Ltd. v. Bason, 303 F.3d 507 (4th Cir. 2002)
(Carandola I)) which struck strikingly similar rules as overbroad; such as
simulated sexual behavior banned in performances lacking serious literary,
artistic, scientific or political value. Also banned in the Virginia clubs was noisy
or lewd behavior and disorderly conduct.
The trial court struck the rules of conduct with two observations of
interest. Although the unconstitutional terms would most likely be remedied by a
carve out; the statute does not have a carve out clause. Also, when invited to
construe the statute in a way that gives a narrowing construction, the Court
declined because it lacked jurisdiction to authoritatively construe state legislation.
6.
Joelner v. Village of Washington Park, Ill., 508 F.3d 427 (7th Cir.). Decided
November 19, 2007.
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Welcome to Pottersville or the Twilight Zone. The Village derives almost
100 percent of its income from the adult entertainment industry; and likes it that
way. Although small in size, by June 2006 it had eight adult cabarets licensed and
two under new construction. The clubs offered nude dancing, alcohol, legal onsite masturbation, and 24 hours of operation. When Joelner, an outsider, applied
to operate, the Village fought back. It enacted two ordinances to stop him. While
grandfathering permanently the 10 cabarets, it banned alcohol to new applicants
starting with Joelner. While masturbation remained legal for new applicants,
nudity was proscribed. The preamble stated that the Village sought to limit the
number of available licenses to promote the preservation of public health, safety
and welfare. Two other applicants after Joelner (the former police chief’s son and
another insider) got grandfathered cabaret licenses backdated. When Joelner
applied the licensing ordinance provided that a temporary license issue
immediately, which did not happen. The 7th Circuit found that because the
purpose of the ban on alcohol consumption in newly licensed premises was to
prevent competition, strict scrutiny applied. The Village’s argument that less
alcohol combats secondary effects was rejected because underinclusive regulatory
schemes are not narrowly tailored. The Court found that an ordinance, which
permanently insulates a large number of establishments from the alcohol ban
while leaving alcohol use at those establishments otherwise entirely unrestricted,
draws strict scrutiny.
7.
Sands North, Inc. v. City of Anchorage, Alaska, 2007 WL 3491269 (D.
Alaska). Decided November 15, 2007.
Allan Rubin visits Alaska for Fantasies on 5th Avenue. The club has adult
licensing, and has not been cited or refused renewal. The City filed a FRCP 12(c)
motion, which is the same as a 12(b)(6) motion. Sands argued standing to
challenge the licensing ordinance because even though it is licensed, it is subject
to revocation or suspension with the use of unconstitutional terms. The Court
analyzed the challenges on the merits, finding that the renewal and revocation
portions of the ordinance simply condition the operation of the club on
compliance with neutral and nondiscretionary criteria, which do not seek to
censor content, as in Littleton.
A takings claim made against a 4-foot rule was alleged to be interference
with the use of those 4 feet by rendering it unusable. Alas, it was turned back.
8.
84 Video/Newstand Inc. v. Sartin, 2007 WL 3047207 ( N.D. Ohio) Decided
October 18, 2007.
A dangerous and disturbing secondary effects case again featuring the
Mike Murray v. Scott Bergthold wars. Scott listed himself as a Scottsdale
Arizona lawyer. On the pleadings, the State of Ohio enacted a statute limiting
hours of operation, a no touch rule, and other rules relevant to bookstores. This is
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the case that Angelina Spencer and others fought hard from a lobbying
perspective. The Buckeye Ace Chapter is a Plaintiff also.
The statute did not contain a preamble or statement of legislative purpose;
nor does the statute make reference to alleged adverse secondary effects. The
lack of legislative purpose supports both the argument that (1) strict scrutiny is
required because the statute does not affirmatively show that its purpose is
unrelated the to the suppression of expression, and (2) even if content neutral, the
lack of secondary effects evidence and purpose at enactment violates O’Brien.
The Court set out to do away with the secondary effects analysis for all
time, finding that the issue is now well settled, to wit: Souters concurrence in
Barnes requires no further empirical inquiry. A preamble and legislative purpose
can be presumed. In 2006, the 6th Circuit ruled in Déjà vu v. Nashville that Déjà
Vu was not entitled to discovery regarding secondary effects. Although a
secondary effects analysis made when the law now being amended was enacted is
not properly useable as legislative findings, the government burden is so low that
intermediate scrutiny is proper.
The definition of an adult cabaret (regularly features individuals who
appear nude or semi-nude in a commercial establishment), in the Courts opinion,
was going to be limited to enforcement in bars even though it does doesn’t say so;
so not overbroad.
The prohibition against touching between customer and nude/semi-nude
performers is not a 1st Amendment violation because touching does not involve
protected expression.
9.
Buzdum v. Germantown, 2007 W.L. 3012971 (E.D. Wisc.) Decided October 12,
2007.
This Jeff Scott Olson case appeared in my Summer 2007 update. On
March 30, 2007 this Court ruled that a ban on nude and semi-nude dancing in
adult entertainment establishments only was overbroad, and the failure to present
secondary effects evidence, at enactment, violated O’Brien.
There are two more rulings this time around. Here the City made
revisions and claimed everything else is moot. The Court disagreed, Plaintiff
seeks not only declaratory and injunctive relief, but also compensatory damages
for the loss he suffered before the revisions. Germantown still had not done all of
the revisions correctly. “Specified anatomical areas” was still overbroad (less
than completely and opaquely covered). “Specified sexual activities” was not
narrowly tailored, (entertainer erotically touching her buttock). The definition of
adult cabaret was overbroad (regularly, commonly, habitually or consistently
features) Lastly, the Court ruled against Jeff Scott on his claim that a police bust
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and shut down of the club, without probable cause, was an unconstitutional prior
restraint. Which resulted in the next case.
10.
Buzdum v. Village of Germantown 2008 WL 65414 (E.D. Wisc.) Decided
January 3, 2008
This third court order in nine months featured Jeff Scott filing a motion to
reconsider the Courts refusal to allow the bust and shut down to be litigated. The
Villages law only required Adult Cabaret Licensing for those establishments
“regularly, commonly, habitually, or consistently” featuring adult entertainment.
Budzum #2 had stricken the definition. Budzum did not feature adult
entertainment all the time; and the busted extravaganza had a flyer which said,
“Special Event: Once in a lifetime- don’t you deserve a unique night of
entertainment? Nude Dancing Extravaganza - a bevy of beautiful girls- erotic and
exotic Dance- titillating performances.” Jeff Scott argued that there was no
probable cause and even if the officers had probable cause nothing in the
ordinance authorized police officers to stop the show, send patrons home, and
close the tavern. Instead a citation should have been issued.
The Court refused reconsideration noting that the existence of probable
cause is analyzed when the officers acted; not afterwards when the definition was
stricken. On the other hand, a damages trial is set (probably soon).
11.
Can I Inc. v Louisville/Jefferson County Metro Government, 2007 WL
2893435 ( KY App.) Decided October 19, 2007.
Brad Shafer and Scott Bergthold battle in Louisville, Kentucky. The City
and County merged to become Metro Government in January 2003. This
challenge was filed in the State Trial Court where P.T.’s Showbar got temporary
injunctive relief. Metro removed the case to Federal Court and P.T.’s filed a
motion to remand. While the remand motion was pending Metro moved to
dissolve the injunction in the State Court. (This is classic Bergthold). The Federal
Court ordered the case remanded to the State Court (the complaint had not
mentioned the U.S. Constitution); finding it had no jurisdiction. The trial court
ultimately granted Metro summary judgment and dissolved the injunction. The
Court of Appeals stayed the dissolution of the injunction until this ruling.
The most interesting part of the decision is this Courts response to Brad’s
creativity. The Kentucky Constitution says that in reviewing constitutional
challenges under the Kentucky Constitution courts must analyze how prior
judicial opinions interpreted the constitutional provisions in question. Early
Kentucky legislators relied upon Pennsylvania Constitutional provisions in
creating its Constitution. Early Kentucky cases cite the Pennsylvania
Constitution too. Pennsylvania grants greater 1st Amendment rights to its citizens
than Kentucky. In Paps the Pennsylvania Supreme Court had stricken an antinudity ban; before the U.S. Supreme Court reversed. P.T.’s Showbar urged the
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Court of Appeals to follow the Pennsylvania interpretations of the 1st
Amendment.
The Court of Appeals will have none of this and spent eight pages on why
the Kentucky Constitution tracks the U.S. Constitution and provides no additional
“Pennsylvania like” rights to its citizens. Thereafter, the Court analyzed the
higher speech/lower speech question arising out of Justice Stevens plurality in
Young (societies interest in protecting erotic materials is of a wholly different and
lesser magnitude than the interest in untrammeled political debate. Few of us
would march our sons and daughters off to preserve the right to see specified
anatomical areas exhibited at adult entertainment establishments).
Thereafter the Court gave a standard reasoning in upholding a nudity ban
(panties and g-string is allowed); hours of operation (1am); ban on alcohol; 6 ft.
rule; licensing fees; no direct tipping; and secondary effects.
The Court’s analysis of P.T.’s secondary effects challenge contained the
classic Bergthold theories that (good) crime reports data are poor indicators of
lack of crime at adult clubs because club crime is unreported by club personnel
and customer victims alike. In upholding Metro’s secondary effects presentation,
the Court stated that whether secondary effects have occurred or may occur in the
future is irrelevant. Rather the question is whether the decision to regulate is a
pretext to suppress expression.
Lastly, the court reversed two rulings by the trial court that P.T.’s had
won. Disclosure of owners with 20% or more, who do not actively participate, is
constitutional because a 1990 Louisville case had found extensive involvement of
organized crime in the adult entertainment industry. The prohibition against
dancers touching patrons while both are clothed was not overbroad; even off
premises. Off premises not intended, and touching while not dancing is not
speech.
12.
Bottoms Up Enterprises, Inc. v. Borough of Homestead, 2007 WL 2908762
(W.D. Pa.) Decided October 4, 2007.
Luke Lirot battles Scott Bergthold in Pennsylvania. Once again, no good
deed goes unpunished. Scores wanted to buy a bank building and open an adult
club in the central business section of Homestead. Luke appeared before the
Homestead Borough Council to explain the specific characteristics of the
proposed business. Luke told them that they met the requirements for adult
entertainment there because dancers would wear pasties and g-strings. Luke was
right. Soon thereafter the Borough amended making pasties/g-strings prohibited
at the location; but allowed g-strings and pasties in another zoning district outside
of downtown. Scores did not buy the building, seek building permits, or apply for
a license. To locate in the unwanted zoning, conditions with discretion had to be
met, and most of the area was under private restrictive covenants which
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prohibited adult uses. The Borough also failed to include a purpose clause and
legislative intent and failed to indicate secondary effects that were on their mind
at enactment. This omission was remedied during the lawsuit.
The Trial Court upheld the Boroughs enactment against all attacks. As to
secondary effects, the trial court found that U.S. Supreme Court has not ruled on
whether some secondary effects evidence must be presented at enactment. Only
the 3rd Circuit has said it is not necessary. The 1st, 2nd, 10th, and 11th have said it is
necessary. The Court said they were bound by the 3rd Circuit and that it was not
necessary. The Court also ruled that, other courts have criticized the Randy
Fischer testimony. Calls for service, a basis for the Fischer opinion has been
debunked by Richard McCleary. Therefore, Scores did not overcome its Alameda
burden.
Although Scores has standing to make overbreadth challenges (which are
denied) it lacks standing on all as applied challenges because it did not apply for
building permits or licensing either at the downtown location or at the other
unwanted zoning sites.
13.
5634 East Hillsborough Avenue Inc. v. Hillsborough County, Florida, 2007
WL 2936211 (M.D. Fla.) Decided October 4, 2007.
Luke fights Scott Bergthold in Florida to save Bikini Dancing for Tootsies
and Showgirls. In his complaint, Luke described bikini dancing as a 1st
Amendment protected dance performance, the content of which emphasizes
issues dealing with a variety of human emotions, all presented by females
wearing bikinis. Included are bed dances, couch dances, and lap dances. In
September 2006, the County Commissioners unanimously adopted three
ordinances to regulate bikini performances by general licensing, zoning, and
bikini bar licensing, ordinances each containing preambles weighted towards sex
acts as causing secondary effects.
The fight over secondary effects included Rickard McCleary, Terry
Danner, Randy Fischer, and Judith Hanna, among several other experts. Terry
Danner argued that studies show that it is alcohol that is linked to secondary
effects, whether consumed at regular nightclubs or adult clubs.
Again the Trial Court concluded that our team of experts have failed to
cast doubt on the County’s rationale and to shift the Alameda burden back to the
County. Of course bikini dancing is possessed with a unique danceology. Plus,
we in the 11th Circuit are clobbered by Daytona Grand.
14.
Hamilton’s Bogarts Inc. v. Michigan, 501 F.3d. 644 (6th Circuit) Decided
August 30, 2007.
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Featured here is the 6th Circuit as patient and benevolent friend of nude
dancing. Bogarts and a Bogarts dancer challenged the 1998 statute’s definition of
“topless” and “nudity”. The statute prohibits establishments with liquor licenses
from allowing nude or topless dancing on stage. An establishment can apply for a
permit for topless dancing to the Alcohol Commission in some circumstances.
The Trial Court had refused temporary injunctive relief. The denial is the
subject of this appeal. The 6th Circuit found that it normally reviews denials of
temporary injunctions under an “abuse of discretion” standard. The benevolent
6th Circuit noted that: Bogarts had sued the State for §1983 damages even though
they are barred by sovereign immunity. Bogarts argued a 5th Amendment Due
Process violation despite the fact that the 5th Amendment only applies to federal
government violations. Bogarts had previously challenged one of the rules
challenged here, with a final ruling in Federal Court that the rule was not vague.
The State incorrectly argued that the prior ruling was res judicata confusing it
with collateral estoppel. (Here is another Plaintiff and a challenge to another Rule
not previously litigated). The substitution of collateral estoppel for res judicata
will be permitted because Latin is a dead language anyway.
Most importantly, the 6th Circuit reversed the denial of a preliminary
injunction because the trial court rejected Bogarts’ 1st Amendment challenge; on
the basis that per California v. LaRue the 21st Amendment allows the State to
regulate liquor sales without regard to the 1st Amendment. The 6th Circuit
reminded the trial court that 44 Liquormart, 11 years ago, disavowed that old La
Rue analysis.
Lastly, the 6th Circuit noted that Plaintiffs appear to have a stronger case
for overbreadth than the Plaintiffs in Triplett Grille. Judge Alice Batchelder
wrote a concurring opinion of interest, too.
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