With
Current Repressive Laws the Religious Right Forcing Their Morality on
All Makes A Legal Case to Support Restrictive Adult Business Laws
This is a document sent out by the group Morality in the Media, and is part of their -Obscenity Law Bulletin-
Dated Feb. 2000 and distributed by www.xxxpolitics.com
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A Review of Municipal Controls
on Lap Dancing
Compiled by Director and Staff of The National Obscenity Law Center
Lap Dancing is a fairly new phenomenon presented for amelioration to city councils already beset by the necessity to regulate “adult” bookstores and other sexually oriented businesses. Municipalities have, or can provide, various weapons in their arsenal to eliminate this cause for concern if they chose to do so. Cases uniformly hold that lap dancing is conduct and not speech, thus, First Amendment concerns are obviated. These cases indicate that existing laws can frequently be utilized or an ordinance can be developed directly attacking the problem. Such ordinances, if properly drawn, are universally upheld. There are two general approaches. The first uses existing law relating to prostitution, lewdness or immoral conduct to punish particular offenders or to support an injunction based on a theory of nuisance. The more popular approach, which has the virtue of a continuing prohibition, is to enact a “buffer zone” municipal ordinance which keeps the performer and the patrons separated thus accomplishing the municipal objectives indirectly.
Using Lewdness and Prostitution Laws
One of the difficulties in using an existing state or local law prohibiting “prostitution” is that it generates an immediate disputation on whether or not lap dancing is a form or prostitution- the argument being that it does not fit the traditional definition of that term. A Texas court, however, held that it clearly violated their statute prohibiting a person from knowingly engaging in sexual conduct for a fee. Steinbach v. State, 979 S.W. 2d 836 (Tex. Ct. Aps. 1998).
A number of states or municipalities have in the prostitution section of their penal code a prohibition of “lewdness”. States such as Florida and Michigan have utilized that term to declare lap dancing unlawful.
In Florida, the first case to use that approach was Hoskins v. Department of Business Regulation, 592 So. 2d 1145, review denied, 601 So.2d 552 (Fla. Dist. Ct. App.), where in 1992 the District Court of Appeals held that lap dancing was “lewd” conduct under Section 796.07(2)(a) of the Florida statutes, which prohibited operating a building for purposes of lewdness, warranting revocation of an alcoholic beverage license.
The next year a Florida Court of Appeals in State v. Waller, 621 So. 2d 499, held that a jury could find that a lap dance is lewd under the Florida statute if “indecent”.
A 1997 unreported case, State v. Conforti, (Fla. Dist. Ct. Aps. 95-0299 and 95-1299, Blue Book Citation 1997 FL 40), involved Florida Statute 796.07(1)(b) prohibiting “prostitution, lewdness or assignation” and defining “lewdness” as “any indecent or obscene act”. Based on prior Florida cases the court held “lap dancing” was prohibited by that statute.
.C.L. 600.3801; M.S.A. 27A.3801 declares as a nuisance any building used for the purpose of “lewdness, assignation or prostitution”. The Wayne County Prosecutor in a series of cases was able to use the statute against an establishment that featured, among other activities, “lap dancing” and “shower dancing”. The trial court and the Michigan Court of Appeals in State of Michigan ex rel Wayne County Prosecuting Attorney v. Dizzy Duck, 511 N.W. 2d 907 (1994), held that lap dancing fell within the terms of the statute relating to lewdness and constituted an abatable nuisance that could be enjoined. The appellate court, however, refused to declare the premises a nuisance. In addition, the appellate court’s abatement order on lap dancing only enjoined the same “where there is significant direct contact”...Not satisfied with the outcome, the prosecutor appealed to the Supreme Court of Michigan, 535 holding that lap dancing was “lewdness” under the statute, stopping just short of prostitution. It remanded the matter to the Circuit Court to consider whether the establishment should be padlocked. The Supreme Court in its ruling rejected the lower court approach and held that the nuisance abatement statute permitted abatement of the premises for both lewdness and prostitution. On January 12, 1996 Dizzy Duck was closed for a year.
The 1998 case of State v. Mell, 576 N.W. 2d 428, caused the Michigan courts to again address the issue of lap dancing. The Michigan Court of Appeals refused to apply the Dizzy Duck Supreme Court opinion on a theory that at the time of the infraction the lower court opinion was the law. The Supreme Court of Michigan was not about to allow such an interpretation and in People v,. Mell, 586 N.W. 2d 745 (1998), the case was remanded to the District Court with instructions to apply its 535 N.W. 2d 178 opinion indicating that that decision represented the law prior to its articulating the same.
One of the cases cited by the Michigan Supreme Court was State ex rel Miller v. Private Dancer, 613 N.E. 2d 1066 (1992), an early Ohio Court of Appeals opinion. In that case the County Prosecutor filed a complaint indicating that the establishment known as “Private Dancer” permitted “lewdness” in the form of “lap dancing” and should be closed as a nuisance. The Court of Appeals dismissed a vagueness attack on the use of the word “lewdness” and upheld an injunction saying there was credible evidence that “lap dancing” was “lewd” and “tended to excite sensual desire or imagination”.
The Nebraska Court of Appeals in 1994 in the case of Houston v. Nebraska Liquor Control (Neb. App. Ct. No. A92-090), ruled that “lap dancing” and certain other sexual activity violated a city ordinance which prohibited “lewd” indecent or lascivious” behavior.
An early “lap dancing” case involving a male lap dancer in a liquor establishment setting arose in the Commonwealth of Pennsylvania in 1990. The Commonwealth Court held in Commonwealth v. CIC Investors No. 870, Ltd., 584 A. 2d 1094, that this was “immoral or improper” entertainment in violation of Section 493(10) of the Liquor Code.
A similar result was obtained under a Pennsylvania “Bottle Club” statute in the more recent case of Commonwealth v. Maker, 716 A. 2d 619 (Pa. Super. Ct. 1998). The new statute, 18 Pa. CSA 7329(a), prohibited “lewd immoral or improper” entertainment for profit in a “bottle club”. This case has been accepted for review by the Pennsylvania Supreme Court, 725 A.2d 175 (1999).
Lap dancing is also a concern over the border in Canada. One of the first courts to deal with the issue was the Court of Appeals for the Province of Ontario in a 1996 case entitled Her Majesty the Queen v. Ludacka, No. C17481, where the court held that the Criminal Code, Section 167(1) prohibited lap dancing under its ban on “immoral” performances.
A court of Kansas found no difficulty in confirming a jury verdict that “lap dance” was obscene under their criminal code, State v. McGraw, 879 P. 2d 1147 (Kan. Ct. App. 1994).
Using Remedies Other Than “Lewdness” or “Buffer” Zones
An ordinance of the City of Arlington, Texas forbids any “touching” between nude performers and customers in “adult” cabarets. It was challenged by the proprietor of a topless bar on various constitutional grounds. The court noted that Arlington had amassed studies describing the noxious effects of adult entertainment establishments. It held that “intentional touching”... is conduct beyond the expressive scope of the dance. The court applied the O’Brien rule, 391 U.S. 367 (1968), to test the ordinance and ruled that it complied. The court, while noting that the Arlington City Council did not make specific legislative findings regarding the “no touch” provision, permitted the city to offer a rationale to justify the same to wit, that it served to “prevent prostitution, drug dealing and assault”. Hang On Inc. v. City of Arlington, 63 F. 3d 1248 (5th Cir. 1995).
The City of Arlington “No Touch” provision was also being litigated in state court in 2300 Inc. v. City of Arlington, 888 S.W. 2d 123, by a different plaintiff. In 1994 the Texas Court of Appeals held that the provision was content-neutral as a time, place and manner regulation and was directed against the secondary effects of adult cabarets such as prostitution, drug dealing and assault. The court noted that time, place and manner restrictions are permissible if they are (1) content neutral (2) narrowly tailored to serve a significant government interest and (3) leave open ample alternative avenues of communication...
A Michigan Liquor Control Regulation relative to allowing “sexual acts prohibited by law” was held to be violated by permitting “lap dancing” in a bar. Kotmar, Ltd. v. State, 525 N.W. 2d 921 (Mich. Ct. Aps. 1994).
In a 1999 leased access commercial television case, Loce v. Time Warner Entertainment Advance/Newhouse Partnership, Nos. 97-9301, 97-9601, 97-7040, the Second Circuit upheld the right of Time Warner, under a new federal statute, to refuse to transmit indecent programming which had “lap dancing” as one of its components.
Buffer Zone Laws
These laws have been most successful. Instead of prohibiting “lap dancing” as such, these ordinances obtain the same result by maintaining anywhere from a three foot to a ten foot separation between dancers and patrons. The cases, outlined herein, indicate that a well drawn ordinance will articulate in the Preamble or the Findings the deleterious effects that the ordinance is designed to ameliorate and demonstrate the link between regulation and the asserted government interest, the evidence on which the city fathers or mothers relied to determine that adverse secondary effects emanate from “lap dancing”. This evidence is garnered either from local studies, testimony, studies conducted in other locales, or as Renton says:
“We hold that Renton was entitled to rely on the experience of Seattle and other cities, and in particular on the “detailed findings” summarized in the Washington Supreme Court’s Northend Cinema Opinion”.
In other words, a municipality can rely for justification on local studies or testimony, studies from other locales or “detailed findings” of deleterious effects found in other court opinions. The cases indicate that the better course is to spell out the specific studies by name or the specific findings of other courts. It is also important, too, say the cases, to be able to demonstrate that the city Fathers or Mothers relied on this evidence prior to the adoption of the ordinance.
A typical Buffer Zone ordinance is that represented in the Bolser case, discussed below, requiring that topless dancing be performed upon a stage “at least 18 inches above the immediate floor level and removed at least six feet from the nearest patron”.
Although it is uncertain where the buffer zone concept was first utilized, a likely source is the State of New York. The United States Supreme Court in New York State Liquor Authority v. Bellanca, 452 U.S. 714, 101 S. Ct. 2599 at 2603 (1981), noted that prior to a 1977 amendment to the New York Alcoholic Beverage Law prohibiting topless dancing, the ABC Regulation permitted topless “on a stage or platform which is at least 18 inches above the immediate floor level and at least six feet from the nearest patron”.
It is interesting to note that this approach to topless would apparently have garnered the votes of the four dissenters in Barnes v. Glen Theatre, 501 U.S. 560 (1991). In the dissent, Justices White, Marshall, Blackmun and Stevens state:
“If the state is genuinely concerned with prostitution and associated evils...or the type of conduct that was occurring in California v. LaRue...it can adopt restrictions that do not interfere with the expressiveness of non-obscene nude dancing performances. For instance, the state could perhaps require that, while performing nude, nude performers remain at all times a certain minimum distance from spectators, that nude entertainment be limited to certain hours, or even that establishments providing such entertainment be dispersed throughout the city. Cf. Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986). Likewise the state clearly has the authority to criminalize prostitution and obscene behavior”.
Some may view these remarks as presaging a clear approval by the United States Supreme Court of the first lap dancing (buffer zone or lewdness) case that reaches that august body.
We now review the specific buffer zone lap dancing cases. We start with those that embody the ten foot requirement.
Kitsap County in the State of Washington, in a series of cases both state and in the Ninth Circuit, has established the validity of such language as far as the Federal Constitution is concerned. The Ninth Federal Circuit includes Washington, California, Oregon, Montana, Nevada, Idaho, Arizona, Alaska, Hawaii and Guam.
An early 1986 juice bar case, Kev Inc. v. Kitsap County, 793 F. 2d 1053, was a test of an erotic dance studio ordinance prohibiting affectionate touching between dancers and patrons and requiring that all dancing take place at least ten feet from the patrons and on a stage raised at least two feet from the floor. Tipping was not permitted. At page 1061 the Ninth Circuit Court said:
“Separating dancers from patrons would reduce the opportunity for prostitution and narcotics transactions...The county presented testimony that close contact between dancers and patrons facilitated these transactions”.
The court went on to hold that the ten foot rule did not “significantly burden First Amendment rights” and opined that “While the dancer’s erotic message may be slightly less effective from ten feet, the ability to engage in protected expression is not significantly impaired. Erotic dancers still have reasonable access to the market”.
While the Kev case was making its way up to the Ninth Circuit, and after the Federal District Court for the Western District of Washington, No. 83-180R(1984), had upheld the ordinance except for the hours of operation proviso, the county brought an action to enjoin the erotic dance studio as a nuisance in state court for violations of the ordinances. The Washington Supreme Court in Kitsap County v. Kev. Inc., 720 P. 2d 818 (1986), held that a nuisance existed.
The Ninth Circuit was again afforded an opportunity to uphold its prior 1986 ruling in 1998 when an ordinance of the City of Kent, Washington was at issue. Colacurcio v. City of Kent, 163 F.3d 545. It, in effect, parroted the Kitsap County language and was patterned to meet a King County Superior Court ruling on an ordinance of Bellevue Washington (reviewed infra). It provided the portion of the exotic dance studio premises in which dancing and adult entertainment is performed:
“Shall be on a stage or platform at least twenty four (24) inches in elevation above the level of the patron seating area. No dancing or adult entertainment by an entertainer shall occur closer than ten (10) feet to any patron”.
The code also prohibits dancers from soliciting or receiving tips from patrons.
The Ninth Circuit, in reviewing this case, outlined the requirement for time place and manner regulation as follows:
“Municipalities may impose reasonable restrictions on the time, place and manner of protected speech provided the restrictions are (1) content neutral (2) narrowly tailored to serve a significant government interest; and (3) leave open ample alternative channels for communication of the information, Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). The Supreme Court has determined that the test is similar or identical to the O’Brien test....In determining whether an ordinance is content-neutral, our principal inquiry is whether the government has adopted a regulation of speech because of disagreement with the message it conveys...The content-neutrality requirement is met if the involved ordinance is `aimed to control secondary effects resulting from the protected expression rather than at inhibiting the expression itself”’.
The court, basing its opinion, partly on the previously decided Kev case upheld the ordinance. It noted that the ordinance was based on “a comprehensive study of adult entertainment businesses and their secondary impacts... In formulating the ordinance, the city relied on the study concluding that regulation of adult uses was an important factor in controlling prostitution and drug dealing and other criminal activity”.
A ten foot ordinance was also adopted by Pierce County, Washington contested and upheld in DCR Inc. v. Pierce County, 964 P. 2d 380 (1998). The ordinance also required a raised platform for performers at least 18 inches off the floor. The county held that the law was adopted to eliminate “historical” and regular occurrence of “prostitution, narcotics, breaches of the peace and the presence within the industry of individuals with hidden ownership interests and outstanding arrest warrants”. DCR has filed for review of this opinion to the United States Supreme Court- No.99-220.
Next we have an isolated eight foot rule case, Ino Ino, Inc. v. City of Bellevue, 937 P. 2d 154 (Wash. 1997). The city of Bellevue, Washington enacted an ordinance in 1993 regulating “adult” cabarets. It required that dancers perform on a elevated stage at least eight feet from the patrons and if performing in a non-stage area at least four feet from any member of the public. The trial court upheld the ordinance. It found that illegal exposure and sexual contact occurred at “adult” cabarets and that the city had enacted the ordinance to curb these secondary effects. The trial court also found that the dancers can convey eroticism from a distance of four feet. The Washington Supreme Court affirmed as a time, place and manner regulation not a prior restraint and specifically held that the four part O’Brien test had been met. The definition of an “adult cabaret” was not confined to an alcoholic beverage establishment.
[A copy of this ordinance is available from the National Obscenity Law Center for the cost of photostat and mailing].
Next we examine the jurisdictions that adopted a six foot rule. These include the Washington State Liquor Control Board; King County, Washington; State of Maryland; Chattanooga, Tennessee and Sullivan County, Tennessee.
We start with Bolser v. Washington Liquor Control Board, 580 P. 2d 629 (1978), an early case that applied a Board Regulation to the effect that alcoholic beverage establishments utilizing topless dancing must require that performances be on a stage “at least 18 inches above the immediate floor level and removed at least six feet from the nearest patron”. The Washington Supreme Court noted that the controversy arose in a liquor control setting where states are allowed greater leeway. The court first ruled that any infringement of First Amendment rights was minimal and then outlined the State’s rationale for its promulgation as follows:
“The number of cases wherein arrests have been made and licensees have been cited for allowing disorderly persons on licensed premises has increased many times during the last few years. The majority of these violations of the Liquor Act involved topless table dancing. The rule, as adopted, will minimize the chances of repeated violations of this nature”.
The court observed that there was no sex-based discrimination because the ordinance applied to both sexes.
BSA Inc. v. King County, 804 F. 2d 1103 (1986), was a Ninth Circuit “soda pop” or “juice bar” case. The ordinance, at issue, required that all entertainment be on a stage 18 inches high and six feet from the nearest patron. The federal court upheld these provisions as valid time, place or manner regulations. The court noted that the state’s purpose was to curtail public sexual contact and sexual criminal offenses and ruled that this represented a significant state interest. The court also said that the distance requirement does not diminish the expressiveness of the nude entertainment.
The same ordinance was before the Washington Supreme Court two years later in the case of O’Day v. King County, 749 P. 2d 142 (1988). One of the defendants was accused of performing a “lap dance” which the court labeled pure conduct which was subject to the valid King County time, place or manner, content-neutral regulation.
Chattanooga, Tennessee amended its “Adult” establishment ordinance to add a provision that:
“No entertainer, employee or customer shall be permitted to have any physical contact with any other on the premises during any performance and all performances shall only occur upon a stage at least eighteen inches above the immediate floor level and removed at least six feet from the nearest entertainer, employee and or customer”.
DLS, a corporation operating a night club devoted to erotic dancing, challenged the constitutionality of the ordinance. The Sixth Federal Circuit Court of Appeals in DLS Inc. v. City of Chattanooga, 107 F. 3d 403 (1997), quoting Justice Souter in Barnes, indicated that proof or evidence of secondary effects need not be shown saying:
“It is reasonable to conclude that the six foot rule would further the state’s interest in the prevention of crime and disease. A prohibition on contact certainly limits the spread of disease, demonstrates that the addition of a buffer zone to the ban on contact was necessary to achieve that goal...just as ...Indiana could conclude that ‘the higher incidence of prostitution and sexual assault in the vicinity of adult entertainment locations result from the concentration of crowds of men predisposed to such activities or from the simple viewing of nude bodies’ so, too, could the city conclude that similar results obtain from similar concentrations of crowds or from the viewing of nearly nude bodies in overly close proximity”.
DLS has filed for review with the United States Supreme Court, No. 99-356. Cf. 68 U.S.L.W. 3172.
Tily B Inc. v. City of Newport Beach, 81 Cal.Rptr. 2d, is a 1998 California Court of Appeals case in which one of the provisions of an adult entertainment establishment ordinance, requires entertainers to perform on a stage at least 18 inches high and six feet away from patrons. It also has “no contact” and “no tipping” provisos. The court said:
“In applying the no-contact rule...the city could reasonably conclude that separating entertainers from customers reduces the opportunity for prostitution and drug dealing...The stage height and distance requirements further the city’s interest in crime and disease prevention and are narrowly tailored to meet the goal and are constitutional...The no tipping rule reduces the likelihood of illicit transactions”.
An ordinance in a 1999 case, American Show Bar Series Inc. v. Sullivan County, Chancery Court Sullivan County, No.15-279, prohibits the consumption of alcohol in an adult oriented establishment and requires that exotic dancers perform on a stage at least 18 inches high and six feet from the nearest patron. Relying on Barnes v. Glen Theatre, 501 U.S. 560 (1991), the chancellor found the ordinance to be content neutral as aimed at secondary effects associated with adult entertainment establishments such as increased incidence of crime and sexually transmitted diseases. The court also held the ordinance withstood the O’Brien test.
Remaining for consideration are ordinances which establish a buffer zone of three feet, four feet and those which provide a buffer, but do not define it in terms of feet. These include the City of Carrollton Georgia; City of Colorado Springs; Pinellas County, Florida; and Whitfield County, Georgia.
We start at three feet with the case of T- Marc v. Pinellas County, 804 F. Supp 1500 (M.D. Fla. 1992). This case involved an Adult Use Establishment Ordinance whose Preamble utilized the leeway in Renton to rely on the “detailed findings” “summarized” in other court opinions. Renton, 106 S. Ct. 925, 931.
The District Court said
:
“The County relied on the experiences of Seattle, Washington as set forth in Northend Cinema Inc. v. Seattle...Apple Theater Inc. v. Seattle and on reports and studies from Amarillo, Phoenix, New York City, Beaumont, Houston, Austin, Indianapolis, and Oklahoma City...Renton only requires that the evidence relied on is reasonably believed to be relevant to the problem...The magistrate, concluded that after reviewing each source relied upon by the county that these sources discuss the same secondary effects the county addresses in the ordinances and are therefore relevant to the problems these ordinances address. Thus, under Renton, the county’s reliance upon the experiences of other cities as support for its ordinances is proper”.
At page 1505, the court discusses the challenge to the three foot rule saying:
“The court finds that the evidence supports the conclusion that the ordinance’s three foot requirement is directed at combatting the secondary effects of permitting close contact between the patrons and the dancers and is unrelated to the suppression of free expression. Specifically, the ordinance is aimed at combatting the secondary effects of the spread of social diseases and crime, which are substantial government interests”.
The court goes on to state that it was proper for the lower court judge to consider the police sergeant’s evidence that close contact between patrons and dancers often degenerates into lewd and lascivious conduct and fosters prostitution. “This court finds that the magistrate properly considered the sergeant’s testimony...This court adopts the finding that the three foot rule is narrowly tailored”.
We next examine Club Southern Burlesque v. City of Carrollton, 457 S.E. 2d 816 (Ga. 1995). The ordinance requires that performers, but not waitresses and other employees, remain four feet from patrons and prohibits them from receiving tips directly from patrons.
The State Supreme Court indicated that mere conclusory statements in the Preamble regarding the experiences of other cities was pure “hearsay” and would not have been enough. At page 818 it says:
“Here the city did produce evidence of the specific studies it had relied on and evidence of its reasonable belief in the relevance thereof...The list of studies and the representation that these studies support the City’s position were not offered to prove the truth of the matters asserted therein, but were offered to prove that the city had considered specific evidence of the pernicious secondary effects of adult entertainment establishments which it reasonably believed to be relevant to the problems addressed by the ordinance.”
We now review the case of City of Colorado Springs v. 2354 Inc., 896 P. 2d 272, where, in 1995, the Colorado Supreme Court upheld an ordinance which provided that entertainers in adult theaters and adult cabarets perform only upon a designated fixed and immovable stage and that audience members may not be seated within three feet of the edge or go onto the stage. Also, tips are not to be handed to the performer. The court held these provisions were valid.
Finally, we examine the ordinance in Parker v. Whitfield County, Georgia, 463 S.E. 2d 116 (Ga. 1995). The Supreme Court of Georgia upheld an ordinance that required performers to dance on a stage of minimum height, established minimum distance requirements between patrons and performers, prohibited performers from receiving gratuities, had a “no touch” provision, and prohibited the sale or consumption of alcoholic beverages.
The court stated that “The enactment of the ordinance was based on studies conducted by other communities and meetings of the Board with the Sherriff’s Department”. The court held that it was not incumbent on the county to prove the efficacy of the studies. It was only required to prove that it considered specific evidence of the pernicious secondary effects of adult entertainment establishments which it reasonably believed to be relevant to the problems addressed by the ordinance.
Conclusion
The cases reviewed indicate that a properly drawn adult establishment ordinance providing for distance requirements will be upheld if it meets the Ward or O’Brien tests mentioned above. It appears, from the cases cited, that it is important to articulate the deleterious effects that the government is trying to avert in the Preamble or Findings and to recite therein the evidence on which the municipality relies on either from local deleterious effects, detailed findings in other court’s opinions or studies from other locales normally prior to the enactment of the ordinance. It also appears that there must be evidence that the city authorities relied on this evidence in enacting the ordinance. Cf. Chambers v. Peach County, 467 S.E. 2d 519, 522 (Ga. 1996), on this necessity. |