VOL. 123 | NO. 56 | Thursday, March 20, 2008
Law & The Courts
Attorney General To Defend Strip Club Ordinance
By Bill Dries
Tennessee Attorney General Robert Cooper will help defend the Shelby County ordinance governing Memphis strip clubs in U.S. District Court.
Cooper's office filed a motion Monday to intervene on the side of the city and county in the case filed by seven strip club owners. The suit challenges the constitutionality of the ordinance as well as the state law on which the ordinance is based.
Cooper's request was filed the day before Memphis City Council members voted to table action on a city strip club ordinance to see how the federal court case plays out.
Council member Edmund Ford Jr. moved for the delay.
"I do not believe that this council right now should make a decision on this matter while it's under pending litigation, especially since we are involved," Ford said. "If we weren't involved, it would be different."
State of grace
The 7-5 council vote to table the city proposal means the ordinance enacted last year by the Shelby County Board of Commissioners banning beer sales at the clubs remains in effect for Memphis as well as the unincorporated county. All of the clubs are in Memphis.
The city proposal drafted by the Herenton administration in consultation with club owners would have permitted beer sales.
The county ordinance took effect with the new year. But the ordinance has a 120-day grace period before enforcement to allow for setting up a system of permits and criminal background checks for workers and owners. The grace period runs out at the end of April.
The club owners have filed for a temporary injunction to stop enforcement of the ordinance until the lawsuit is decided. That could take years, because whoever loses at the district court level is expected to appeal.
All sides in the case are to meet before Federal Magistrate Judge Tu M. Pham in one week.
'A little disingenuous'
City Attorney Elbert Jefferson pushed for the city proposal right up to the council vote.
He told Council Chairman Scott McCormick that the proposal was stronger than the county ordinance even after McCormick pointed out that the city proposal would only allow for a maximum $50 fine, while the county ordinance with backing from state law makes some violations criminal offenses punishable by jail time.
"They can get off. They can negotiate a plea. We have the ability to enforce this particular ordinance," Jefferson insisted. "They're not going to allow their dancers to get an extra $25 tip for doing a lap dance and they end up losing their (business) license."
McCormick replied that the city now has the power to suspend and permanently revoke beer permits for the clubs through the Memphis Alcohol Commission.
"How often are licenses actually revoked?" McCormick asked. Jefferson said he didn't know.
A 2006 report by Duncan Associates consultants of Austin, Texas, could find no record that any strip club had ever had its beer permit permanently revoked. The study by Eric Kelly also concluded that the strip clubs were the wildest he had ever seen in a career in which he's studied strip clubs in numerous American cities.
Jefferson cited roughly $2 million in tax revenue the city would lose if there were no beer sales at the clubs.
McCormick accused him of being "a little disingenuous."
"You can't judge how much revenue we're going to lose," he said. "I might have a beer at a strip club. If I can't go to the strip club and have a beer, I might have a beer at a local tavern. You can't tell how much revenue we're actually going to lose."
"We have received documentation from the owners themselves," Jefferson replied to laughter from the crowd of about 100 gathered to oppose the proposed city ordinance.
Council member Myron Lowery condemned the move to delay as "copping out."
"You understand all of the implications. ... We are a legislative body. We should not defer to the courts," he said to other council members. "We need to have courage and leadership to state our convictions, whatever they might be."
'Sinful and wicked'
The decision to table the proposal on what would have been its third and final reading appeared to satisfy neither side in the larger dispute of how to regulate an industry in which three generations of club owners - Art Baldwin, Danny Owens and Ralph Lunati - have been convicted of federal charges that they ran their clubs as criminal enterprises promoting prostitution. Efforts to regulate the clubs out of business by the city over the last 30 years repeatedly have been held unconstitutional by the courts in rulings that make it clear nude or topless dancing, in and of itself, is a form of expression protected by the U.S. Constitution.
Backers of the county ordinance, including Shelby County District Attorney General Bill Gibbons, claim it recognizes those constitutional guarantees as it regulates other conduct that isn't protected.
Club owners and their attorneys watched from the council chambers Tuesday but offered no comment as they left after the vote.
Business leader Nick Clark, who was among those favoring the county ordinance, said the council should have voted down the Herenton administration proposal once and for all.
"The community then is at risk of having the City Council pass an ordinance when certain members who oppose it are absent," Clark said after the vote to table.
Those voting to table the proposed city ordinance were Ford, Bill Boyd, Shea Flinn, Janis Fullilove, Wanda Halbert, Reid Hedgepeth and Barbara Swearengen Ware. Those voting no were Lowery, McCormick, Harold Collins, Bill Morrison and Jim Strickland.
Council member Joe Brown didn't vote at all. Brown has said repeatedly that he won't vote for or against any measure because he considers the strip clubs to be "sinful and wicked."