Exotic dancer, club challenge law against nudity at places serving alcohol

Thursday, April 29, 1999

An exotic dancer and a nude-dancing club sued the city of Casselberry, Fla., in state court earlier this week, challenging the constitutionality of a city law that forbids mixing alcohol and nudity.

On Jan. 4, the city adopted a law providing that “the combination of nudity and alcoholic beverages at any premises or bottle club licensed under the laws of the State of Florida to allow the sale or consumption of alcoholic beverages within the City of Casselberry is hereby strictly prohibited.”

Michelle Perreault, who dances nude at Club Juana in Casselberry, and Pinter Enterprises, Inc., the entity that owns Club Juana, contend in their lawsuit that the city law violates the First Amendment, the free-speech provision of the Florida Constitution and an assortment of other constitutional rights.

“The ordinance is unconstitutional because it conditions the conferral of a benefit (a license to sell alcoholic beverages) upon the surrender of a constitutional right (nude dancing),” the plaintiffs allege in Perrault v. City of Casselberry.

The plaintiffs also allege that the ordinance is unconstitutional because “it fails to provide an exemption for theatrical plays, dinner theatres, skits and other such performances.”

They also claim that “the ordinance will have a chilling effect on constitutionally protected expression and encourage arbitrary and capricious enforcement.”

Steven Mason, attorney for the plaintiffs, says the ordinance runs afoul of the First Amendment in several respects. “One of the fundamental flaws of the ordinance is there is no exception for First Amendment-protected expression which has been recognized by the courts as essential,” he said. “This ordinance must have an exception for theatrical performances; otherwise, the law is unconstitutionally overbroad.”

In several cases, culminating in its 1991 decision Barnes v. Glen Theatre, Inc., the U.S. Supreme Court has indicated that nude dancing is a form of expressive conduct that merits a degree of First Amendment protection.

However, the Supreme Court ruled 5-4 in its 1973 decision in California v. LaRue that a state could prohibit the sale of liquor at sexually oriented businesses. The court held that the 21st Amendment gave an added presumption of validity to the regulation. Section 2 of the 21st provides that “the transportation or importation into any State … for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.”

Mason counters that the 1996 decision 44 Liquormart, Inc. v. Rhode Island called into question the rationale of the court's reasoning in LaRue with respect to the 21st Amendment. The Supreme Court in 44 Liquormart wrote that the 21st Amendment “does not qualify the constitutional prohibition against laws abridging the freedom of speech embodied in the First Amendment.”

A call placed to the attorney for the city of Casselberry was not returned.