VOL. 123 | NO. 26 | Thursday, February 07, 2008
Law & The Courts
Strip Clubs File Suit Against City, County
By Bill Dries
Strip Clubs File Suit
These strip clubs have filed suit in U.S. District Court for the Western District of Tennessee against the city of Memphis and Shelby County government.
Christie's Cabaret, owned by Entertainment Productions Inc.
Platinum Rose, owned by Platinum Rose Inc.
The Gold Club, owned by 777 Memphis Inc.
New York, New York, owned by Manhattan Inc.
The Pony, owned by Tennessee Entertainment Concepts Inc. of Long Beach, Calif.
The Jet Strip, owned by 2822 Lambs Place LLC
Downtown Dolls, owned by 600 Marshall Entertainment Concepts LLC
Owners of seven Memphis strip clubs are taking the city and county to court over the recently enacted ordinance governing the clubs and the dancers who are their main attraction.
The latest legal skirmish in the nearly 40-year history of attempts to regulate and occasionally close down the clubs involves some new arguments.
The lawsuit filed late last month by the seven clubs in U.S. District Court for the Western District of Tennessee claims the new ordinance violates their First and 14th Amendment rights to freedom of speech and equal protection, respectively.
"The law will unconstitutionally diminish the availability of sexually candid dance performances in the city of Memphis," the lawsuit reads in making one of six "distinct arguments regarding the constitutional defects" alleged.
It also questions whether the ordinance approved by the Shelby County Board of Commissioners last year also can apply to the city of Memphis in the absence of City Council approval. The state law permitting that says the county ordinance applies to any municipality that does not adopt its own set of rules.
"The city of Memphis has at least two regulatory schemes which can be enforced, and/or are enforced to regulate the operation of adult-oriented establishments," the lawsuit reads. "As such (the county ordinance) cannot by its own terms be enforced against the plaintiffs, each of which operates within the corporate boundaries of the city of Memphis."
The first step in the court challenge is seeking a preliminary injunction from Judge Bernice Donald to stop enforcement of the ordinance until the court case is resolved. No hearing date had been set by press time.
More to come
The ordinance took effect with the new year. But it includes a 120-day grace period for local government to set up the permit and enforcement system spelled out in the new rules. April is when the new rules are set to be enforced.
The City Council delayed until March a vote on third and final reading of its own ordinance. The city ordinance the council will consider differs significantly from the county ordinance. The city version would permit the strip clubs to sell and have beer and other alcoholic beverages on the premises. But it would add the permit system and background checks for club owners and workers.
The lawsuit claims the ordinance "was enacted without any valid evidence to support the restriction it imposes."
It's a point that will be vigorously debated in court if the public debate is any indication.
The filing of the lawsuit late last month has ended, at least for now, a very public debate.
Chattanooga, Tenn., attorney Scott D. Bergthold, who helped local leaders draft the ordinance, will be part of the defense of the measure in court. For that reason, he declined to comment on the legal challenge. So did Rex Brasher, one of the attorneys for the strip clubs.
Wild, wild Memphis
Consultant Eric Damian Kelly of Duncan Associates, who has studied strip clubs and the laws that regulate them in numerous cities across the country, concluded in a 2006 study that the Memphis strip clubs are the wildest he's ever encountered. Kelly said the clubs flout virtually every existing rule established to regulate them.
He also questioned why local leaders haven't imposed greater penalties and adequately enforced rules and regulations.
In November, Kelly said the county ordinance barring beer would be a "radical change."
"It would probably put some of them out of business. I'm not judging whether that's good or bad, I'm just giving you the information. It would materially change the industry in Memphis," he said as the council debated an ordinance that would permit beer at the clubs. "The ordinance that you're looking at today would, in my opinion, address the problems that we saw even though it would still allow alcohol."
Bergthold, who helped draft the Shelby County ordinance and modeled it on Chattanooga's ordinance, successfully defended the Chattanooga ordinance in court against the same claim.
"The courts uniformly have rejected that theory that you have to do a scientific study and spend hundreds of thousands of dollars," he said in September. "Rather, they've said you can, as a legislative body, rely on any evidence that is reasonably believed to be relevant."
Shelby County District Attorney General Bill Gibbons has said the "radical change" Kelly forecasts with the county ordinance wouldn't mean closing. Gibbons consistently has said his goal in supporting the ordinance and in numerous court efforts to have clubs shut down - permanently or temporarily - as a public nuisance is not an attempt to shut down the industry.
"I know there are a number of counties in Tennessee that do have clubs that do operate under this regulatory system," he said in September. "So, it's working elsewhere. If it's working in other counties, it seems to me it could work here."
Club owners are not enthusiastic about the city proposal. But they were involved in negotiations with Memphis Mayor Willie Herenton's administration that led to the proposal. Attorney Price Harris, who represents Entertainment USA Inc., which owns three strip clubs in Memphis, was among those involved in the negotiations.
"To simply say all of the crime in Memphis seems to emanate from sexually oriented businesses - well that's simply not supported by any facts today," Harris said in December. "I'm not happy with the ordinance itself, the way it's written. We have good laws now that have resulted in the closures of clubs."