John Neslon Darby
Strip Club regulations upheld by Tennessee Court of Appeals; Sullivan law remains in force
by Kingsport Times-News
BLOUNTVILLE : If erotic dancing returns to Sullivan County, legally, it will be under regulations set forth in the Adult Oriented Establishment Act of 1998 barring action by the Tennessee Supreme Court. A Court of Appeals has upheld a year-old local ruling declaring the 1998 law constitutional.
It means entertainers at adult-oriented businesses may not dance totally nude, must stay at least 6 feet from patrons, and must have a county-issued permit.
It also means a total ban on alcohol possession, sale, purchase or consumption thereof at adult-oriented businesses. At the time the Sullivan County Commission adopted the act, two Bristol-area bars featured nude dancers, some of whom provided ''lap'' dances.
The Show Palace, on Island Road near the Interstate 81/Highway 11-W interchange, had and still has a county-issued beer permit. The Bottoms Up Club, located on Highway 11-W inside the Bristol, Tenn., city limits, offered patrons the opportunity to ''brown bag'' for bring their own alcohol.
Owners of the bars and a woman who danced at each filed suit in Sullivan County Chancery Court seeking to have the law overturned as unconstitutional.
That court upheld the law in February 1999, and nude dancing in Sullivan County came to an end.
The bars remain open but under the court rulings are not allowed to offer adult-oriented entertainment as outlined in the act. The plaintiffs appealed to the state Court of Appeals, which heard oral arguments in Knoxville in December.
Judges Charles D. Susano Jr., Houston M. Goddard and Herschel P. Franks issued their opinion Wednesday affirming the law's enforcement. The Show Palace and the Bottoms Up Club can continue to operate, but if owners want either to be an adult-oriented business, they will have to follow regulations in the 1998 law.
The Court of Appeals decision, among other points, declares the act is content-neutral, not content-based. The bar owners and dancer complained state legislators and county commissioners intended to deny their First Amendment ''right'' to perform erotic dance as entertainment.
Not so, said the Court of Appeals, ruling the act's intent is to squelch "secondary deleterious effects." "The evidence presented at trial shows that the General Assembly and the Sullivan County Commission sought to combat the deleterious secondary effects associated with adult-oriented establishments, such as an increase in criminal activity and the spread of sexually transmitted diseases,'' the opinion states."
The fact that deleterious secondary effects may not have occurred during the months that the Show Palace and Bottoms Up Club were in operation is irrelevant in determining the need for such an ordinance in Sullivan County.
The record of 911 calls made in regards to the Bottoms Up Club indicate that since 1994, the club has allegedly been the site of nine incidents of public drunkenness, nine incidents of assault, seven incidents of theft, six incidents of vandalism, two incidents of domestic violence, and at least two incidents involving weapons.
These are precisely the types of criminal activity that the act is attempting to combat.'' Plaintiffs also argued the local court had erred in not permitting as evidence the comments of state legislators that the act was intended to shut down the bars.
The Court of Appeals affirmed the local court's decision. "The extraneous statements made by two legislators were properly excluded by the trial court as irrelevant and have no bearing on our analysis of the content-neutrality or the constitutionality of the act," the opinion states.
The judges' opinion recognizes limited First Amendment protection for erotic dancing and quotes an earlier ruling on the matter: "...it remains also true that 'there is nothing in constitutional jurisprudence to suggest that patrons are entitled under the First Amendment to the maximum erotic experience possible."
At issue were regulations contained in the act, including a requirement for dancers and patrons never to be closer than 6 feet. "We therefore find no constitutional infirmity in the 6-foot buffer zone," the opinion states.
The 6-foot rule was one of several such requirements performances must be on an 18-inch or taller stage, no touching, fully opaque coverings for breasts and genital areas, and no showing of covered male genitals in a discernibly turgid state.
Plaintiffs argued the combinations of the regulations were more burdensome than necessary. Again, the Court of Appeals affirmed the local court's ruling. "We do not find that the cumulative effect of these valid regulations renders the act constitutionally invalid," the opinion states. Plaintiffs argued the Show Palace had a vested right to sell beer and that the act would retroactively remove that right.
"A beer permit is merely a temporary permit, a privilege, to do what would otherwise be unlawful," the Court of Appeals judges' opinion states. "Indeed, the Show Palace has not been deprived of its ability to sell beer, it has a valid beer permit. The Show Palace cannot, however, sell beer and offer adult-oriented entertainment."
The dancer and owners of the Show Palace and Bottoms Up Club may seek a re-hearing by the Court of Appeals. They may also appeal directly to the Tennessee Supreme Court.
Update for 2008: all appeals have failed and the local laws have been upheld.
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