Federal judge dismisses challenge to Florida county’s adult entertainment law

Monday, May 10, 1999

A federal court in Orlando, Fla., recently rejected a businessman's challenge to an Orange County adult entertainment law.

William Ward, owner of the “swimsuit club” Bourbon Street South, sued the county, 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 at least some clothing.

Ward contended his club could not be regulated under the zoning law as an “adult performance establishment” because the predominant purpose of his business was not to provide “sexual stimulation” or “sexual gratification.”

The ordinance requires adult businesses to apply for a license and sets strict zoning requirements. Ward did not apply for a zoning license but instead filed a lawsuit, claiming that the ordinance was unconstitutional and that his business could not be regulated as an adult business.

Last August, U.S. District Judge Patricia Fawcett denied Ward's motion for temporary relief, writing that the businessman “has not carried the heavy burden necessary for the issuance of a preliminary injunction.”

On April 29, Fawcett dismissed Ward's lawsuit. Ward had challenged the county's adult business code both on its face and as it applied to him.

Fawcett upheld the law based on the secondary-effects doctrine. This doctrine in First Amendment law allows government officials to regulate expressive conduct based not on the content of the expression, but on the allegedly harmful effects associated with the expression.

The judge noted that county officials cited 26 different types of secondary effects caused by adult businesses when they enacted the ordinance. The court wrote: “Thus, based on the extensive evidence relied upon by Orange County, the Court finds that the Adult Entertainment Code is content-neutral because it is not designed to suppress speech associated with adult uses but to address the secondary effects attendant to such uses.”

The court also rejected Ward's arguments that the law was unconstitutional on its face because it was both overbroad and vague. According to the court, the terms “sexual gratification” and “sexual stimulation” are not “vague” or “facially invalid.”

Next, the court ruled that Ward's challenge was not “ripe.” Ward had contended that the county had selectively enforced its adult entertainment law against his business, forcing him to close down.

“Mr. Ward should not have 'rushed to the courthouse,'” the 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.”

Steve Mason, Ward's attorney, questioned the court's decision.

“Unfortunately, the judge steered away from the constitutional claims,” Mason said. “The judge decided to bury this case in a procedural manner rather than hear our factual and as-applied challenges. This was a form of judicial chicanery.”

Mason filed a motion for rehearing and reconsideration before the court, writing: “This case is a ripe apple.”

“Constitutional rights are too precious to force litigants to exhaust administrative remedies,” Mason wrote.

Mason says that if his motion for reconsideration is denied, he will appeal the decision in Ward v. County of Orange to the 11th U.S. Circuit Court of Appeals.

Linda Brehmer Lanosa, assistant county attorney, said that the judge “carefully considered all the issues and made significant rulings on the facial challenges.”