Anaheim prosecutors say contact between dancers and patrons fits the definition.

By IRIS YOKOI, The Orange County Register December 27, 1997

Anaheim prosecutors have given new meaning to the warning "Look but don't touch" - particularly if you're in a nude club.

Nude-club customers who pay for intimate lap dances are now being prosecuted on prostitution charges - something city officials say is a first in Orange County. Prosecutors and police officials say the touching between patrons and dancers constitutes lewd conduct for money.

Attorneys for nude dance clubs in Anaheim say the personal dances come nowhere close to prostitution.

Five male patrons were arrested in August and September - one at the Flamingo club and four at the Sahara - and all pleaded guilty to the misdemeanor charge of engaging in prostitution, Assistant City Attorney Pat Ahle said.

Each was ordered to pay a fine of about $140, take an AIDS test and attend an AIDS-education class, Ahle said.

Eleven dancers and four managers from the Sahara and Flamingo face trial next month on charges they engaged in prostitution and violated city laws prohibiting touching between dancers and patrons.

Anaheim police vice officers have regularly gone undercover at the city's three nude clubs and two seminude clubs to enforce city regulations adopted in 1993 for sex-oriented businesses.

Arrests have been made on charges of violating those rules or state alcohol laws.

Applying prostitution laws to the alleged touching between dancers and customers is a new law-enforcement tactic. Anaheim police and prosecutors decided this summer to try it after hearing about successful prosecutions in Northern California.

Prostitution is defined in the state penal code as "engaging in sexual intercourse or any lewd act between persons for money or other consideration," Ahle said.

A "lewd act involves the touching of the genitals, buttocks or female breasts of one person by any part of the body of another person and is done with the intent to sexually arouse or gratify," according to state law.

"You'd never be arrested for just being in one of those clubs," Ahle said. "You could be arrested if you break the law." The key elements of the prostitution charge are the exchange of money and the sexual conduct, police officials said.

"If the dancer is going to dance and not make physical contact, and (the patron) pays $10, that's not illegal," police Lt. Steve Walker said.

Walker said undercover officers have seen dancers, who perform nude on stage but wear bikini-like costumes while in the audience, sit on patrons' laps and simulate sex acts.

"That's a crime they're committing even though they are not totally nude, it's still a sex act," Walker said.

Club attorneys disagree. Randall Garrou, attorney for the Flamingo, said that because dancers wear bathing suits when performing lap dances, there is no illegal touching of body parts.

"It's an outrageous prosecutorial abuse to claim that constitutes prostitution," Garrou said. "All relevant areas mentioned in the penal code are clothed. "

Roger Jon Diamond, attorney for the Sahara, called the prostitution charges frivolous.

"Clearly the dancers are not prostitutes," he said.

The 15 Sahara and Flamingo employees arrested over the past year tried unsuccessfully to have their cases dismissed - but not by fighting the prostitution charges.

Garrou and Diamond instead argued that the city law prohibiting touching at sex-oriented businesses is unconstitutional because state lewd-conduct laws already exist.

"When the state enters the field, local cities cannot pass their own ordinances," Diamond said.

The city law prohibits patrons and entertainers from touching one another's clothed or unclothed body parts, including the genitals, buttocks and female breasts.

A state appeals court Dec. 11 declined to rule on the constitutionality of the city law and ordered that the club employees proceed to trial. Diamond appealed to the state Supreme Court on Dec. 18.

Because cities can't legally ban sex-oriented businesses, officials countywide have in recent years tightened business and planning ordinances to regulate such establishments. Residents worry about the secondary effects of the businesses, such as increased crime and decreased property values in surrounding neighborhoods.

"They regulate pretty heavily what goes on inside the club, but who's watching (patrons) when they leave the club?" said Debra Mokhtari, an Anaheim resident who lives near the Imperial Theater, another nude club.

Anaheim police and prosecutors will continue to use prostitution charges when applicable at the clubs, said Sgt. Russ Sutter, who recently took over as supervisor of the vice unit.

"If it's a crime going on, we want to do something about it," he said.