Judge: Nashville can't enforce adult club rule
NASHVILLE - A federal judge says the city cannot enforce an adult entertainment ordinance requiring, among other things, that customers stay at least three feet away from topless dancers. U.S. District Judge Thomas Higgins struck down a 1997 ordinance that required the three-foot rule and made sexually oriented businesses apply for a license and close by 3 a.m. The city, which has 30 days to appeal the decision, also was ordered to pay the plaintiffs legal fees amounting to more than $350,000. My clients are pleased that a form of governmental regulation is not breathing down their necks," said John Herbison, attorney for the plaintiff, Deja Vu of Nashville Inc.
Deja Vu, which bills itself as a "gentleman's club," had applied for a preliminary injunction against enforcement of the ordinance. Higgins made the injunction permanent on Dec. 21 and the city from enforcing the ordinance. Meanwhile, two attorneys on the eastern end of the state disagreed whether the ruling would affect a lawsuit against Sullivan County, which adopted an ordinance last year that requires customers stay six feet away from dancers.
In July 1998, the county adopted the local-option state law based mostly on a Chattanooga statute. Show Palace and Bottoms Up sued the county, claiming the law was unconstitutional and meant to put them out of business. Both clubs lost at the Chancery Court level in February, and oral arguments in their appeal were made in December in Knoxville.
Sullivan County Attorney Dan Street said the two lawsuits and two sets of regulations are dissimilar. The Nashville case involved a "municipal ordinance, which is a completely different ordinance" than the 1998 state law, Street said. But John Parker, the Kingsport attorney representing Bottoms Up, said the two laws were similar in content. The law the county adopted bans complete nudity, keeps patrons and dancers six feet apart, requires licensing of dancers and prohibits alcohol on the premises. "That's the best New Year s news I've heard," Parker said Thursday. "These (regulations) are similar."
Meanwhile, Nashville officials have not decided whether to apppeal the ruling. still believe this community wants to have some reasonable regulations for these types of establishments," City Councilman Chris Ferrell said. "We will evaluate whether it is in our best interest to appeal this or draft a law we think will be constitutional We've learned a lot in this process and we thought we were being responsible in correcting whatever problem the judge had with the law." The city still has the ability to regulate sexually oriented businesses
through it's zoning ordinance.
Such businesses can locate only in the adult entertainment overlay within the downtown business district. They also can't locate within 500 feet of any church, school or park, nor can they be any closer than 150 feet to another adult business. First Amendment experts say topless dancing is a protected form of free speech.
"Some government officials tend to pass these regulations just be cause they dislike these businesses, which is one of the dangers," said David Hudson, attorney at the First Amendment Center at Vanderbilt University. "On the other hand, government should have the power to regulate. You just hope they don't to tally ignore the First Amendment. The city has a half-dozen or so topless dancing clubs and approximately a dozen adult bookstores.
Update for 2008: all appeals have failed and the local laws have been upheld.
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