Federal appeals panel reinstates part of swimsuit-club owner’s lawsuit

Friday, July 21, 2000

A federal appeals court panel recently reinstated part of a
businessman’s challenge to an Orange County, Fla., adult-entertainment law.

William Ward, owner of the now-closed “swimsuit club,” Bourbon Street
South, sued the county in federal court, claiming the ordinance violated First
Amendment free-expression rights. Swimsuit clubs — also known as juice
bars — serve no alcohol and feature female dancers who wear some

Ward contended that his business was not an adult business or “adult
performance establishment” because the predominant purpose of his business was
not to provide “sexual stimulation” or “sexual gratification.”

The ordinance requires an adult business to apply for a license and
sets forth strict zoning requirements. Ward did not apply for a license.
Instead, he filed his federal lawsuit, making both a challenge to the law on
its face and as applied to his business.

In April 1999, a federal judge dismissed Ward’s lawsuit, ruling that
the ordinance was a constitutional method of regulating the harmful secondary
effects associated with adult businesses.

On appeal, a three-judge panel of the 11th U.S. Circuit Court of
Appeals reinstated Ward’s as-applied challenge but agreed with the lower court
on the facial challenges.

The panel first addressed the facial challenges. “The Supreme Court
consistently has held that combating the harmful secondary effects of adult
businesses, such as increased crime and other public health and safety
problems, is a substantial interest,” the panel wrote in its July 13 opinion in
Ward v. County of Orange.

Ward also argued the ordinance was facially unconstitutional, because
it placed the burden on the license applicant, rather than the city, to show
that his or her business was protected by the First Amendment.

The panel rejected that argument, writing that a “city may require the
license applicant to bear the burden of proving that it is engaging in
protected activity.”

However, the panel did reinstate Ward’s as-applied challenge, because
the court was unclear whether Ward had had an opportunity to go before the
zoning board to inquire whether he needed to obtain a license.

The district court refused to hear Ward’s as-applied challenges
because it determined he had not exhausted administrative remedies. “Mr. Ward
should not have ‘rushed to the courthouse,’” the lower court wrote. “He should
have requested an adult entertainment license, including a variance request if
his initial request was unsuccessful, before filing suit in this Court.”

The panel disagreed, writing: “As it is obviously illogical to
force Appellant (Ward) to apply for a license it repeatedly argues it does not
need, the ripeness of the as-applied challenge depends on whether Appellant
could have obtained from the zoning board a determination whether BSS (Ward’s
business) needed a license.”

The panel determined that if such a procedure does not exist, then the
federal court needs to consider Ward’s as-applied challenges.

“There is no mechanism in place for a business to ask the zoning board
whether or not it needs an adult-entertainment license,” said Steve Mason,
Ward’s attorney.

“We are going to file a petition for full panel review on two issues,”
Mason said. “First, we will challenge the idea that the government does not
have the burden of proof. Second, we will challenge the ordinance’s definition
of adult entertainment.

“The case is important because the government should not be able to
run a business around a tree and play word games,” Mason said. “Government
officials must tell a business owner if he or she needs a license or not.”

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