VOL. 123 | NO. 82 | Friday, April 25, 2008
Strip Clubs Prepare For New Reality
By Bill Dries
OPEN FOR BUSINESS: With this week's federal court ruling, the new Adult Oriented Establishment Registration Board is ready to begin regulating strip club owners and employees. The board members are from left Dr. Barbara Prescott, Bernie Weinman, Chairman Joel Nichols, Katherine Kirk and the Rev. Eric Winston. -- Photo By Bill Dries
The line forms at the Shelby County Clerk's office.
This week's federal court ruling denying a request by strip club owners to block enforcement of a new county ordinance governing them is set to take effect Wednesday.
The new rules include a ban on beer or any alcohol in the clubs - which club owners say is an essential part of their operations. The county ordinance went on the book with the new year, but it allowed a 120-day grace period for local government to set up the system of permits and criminal background checks that all employees and all owners must undergo. The four-month grace period ends April 30.
Just the beginning
U.S. District Court Judge Bernice Donald denied a request by club owners for a preliminary injunction to block enforcement until their lawsuit claiming the new rules are unconstitutional is decided.
Donald ruled the club owners failed a key legal test for such an injunction.
"Plaintiffs have not shown a substantial likelihood of success on the merits," she wrote. "Further, Shelby County would suffer greater harm if it were not able to enforce the act. Plaintiffs have failed to demonstrate irreparable harm and, finally, the public interest is served by minimizing the adverse secondary effects of sexually oriented businesses."
The ordinance was approved last year by the Shelby County Board of Commissioners based on a state law. Because the Memphis City Council has not approved its own ordinance, the county ordinance applies to Memphis until or unless the City Council approves a proposed ordinance being pushed by the Herenton administration. The proposal would permit beer sales at the clubs, all of which are in Memphis.
"I think the sentiment when we tabled the proposed city ordinance was let's see what happens in court," said council member Jim Strickland. "I think even though (Donald) denied the injunction, we're a long way from the end of that court battle."
A new challenge
Donald's ruling came days after the five-member board regulating adult-oriented businesses gave conditional approval to the first permits for a set of businesses - the three Tammy's adult bookstores.
The approval was contingent on a background check the Tennessee Bureau of Investigation is performing on the owner. It does not include any employees who might work there. Also, the workers each would have to be fingerprinted and have a criminal background check before being given permits to work there.
The board, whose formal name is the Adult Oriented Establishment Registration Board, met for the second time Monday and quickly established basic procedures.
The county clerk's office is handling the paperwork as it comes in and granting conditional approval barring any gaps in information since there is a 10-day window for approval or rejection. The board then acts on any appeals or can reverse the conditional approval if the background check turns up any problems.
"I've never done this before," Joel Nichols, chairman of the regulatory board and a Smith & Nephew executive, said after he was chosen to lead the group Monday at its second meeting.
"It's kind of new to all of us," replied Assistant County Attorney Robert Rolwing.
Nichols is the representative of Brooks Road businesses who have expressed concern about the impact of adult-oriented businesses, primarily strip clubs, on their businesses. One of the Tammy's bookstores given conditional approval this week is in that area.
Other board members are attorney and retired Criminal Court Judge Bernie Weinman, former Memphis school board member Dr. Barbara Prescott, former Deputy County Clerk Katherine Kirk and the Rev. Eric Winston.
Memphis Police and the Shelby County Sheriff's Department will enforce the ban on beer being consumed or served in any of the clubs.
"That's going to be the significant enforcement issue. That really doesn't have anything to do with permits or licenses," said Harvey Kennedy, chief administrative officer of the Shelby County Sheriff's Department.
Lots of hullabaloo
The beer ban is a major change that club owners have been vocal in complaining about.
At this month's hearing on the injunction request, attorneys for the club owners told Donald that the beer ban would run many if not all of the clubs out of business.
Donald disagreed in Wednesday's ruling.
"Nothing in the act suggests that the plaintiffs' right to operate such a business would be foreclosed," Donald ruled. "The prohibition against serving or consuming alcohol does not restrict the type of expression that is permitted, but merely restricts the circumstances in which it may be presented. This is well within the government's power to minimize the adverse deleterious effects of adult establishments."
The clubs also argued at the April 11 hearing via the testimony of anthropologist Dr. Judith Hanna that contact between dancers and customers, which would be banned, is part of artistic expression that is constitutionally protected.
Donald again differed: "There is nothing in constitutional jurisprudence to suggest that patrons are entitled, under the First Amendment, to the maximum erotic experience possible."
Newly appointed U.S. District Court Judge Thomas Anderson, acting as a magistrate judge, heard a similar request April 17 by adult bookstore owners seeking to bar enforcement of the ordinance at least until their separate lawsuit is decided. The owner of Tammy's is not a plaintiff in the lawsuit. Anderson indicated he will rule soon on the motion for a preliminary injunction.