R.I. high court says towns can prohibit mixing of alcohol, nudity

Thursday, February 24, 2000

Municipalities can pass ordinances that prohibit displays of nudity at businesses that sell liquor, the Rhode Island Supreme Court has ruled.

In 1997, the city of Johnston passed an ordinance prohibiting businesses with liquor licenses from having nude dancing as entertainment. El Marocco Club challenged the constitutionality of the law in federal court later that year.

The club contended that the ordinance violated its free-expression rights under the First Amendment. However, a state superior court found the ordinance constitutional.

On appeal, the Rhode Island Supreme Court agreed in El Marocco Club, Inc. v. Richardson. In its Feb. 18 opinion, the state high court unanimously agreed with the lower court that the ban on nudity at places with liquor licenses did not run afoul of the First Amendment.

The state high court noted that the ordinance did not ban all nude dancing, but rather dancing that occurred at businesses with a liquor license.

“The evident purpose of this regulation was to avoid the secondary effects of mixing the consumption of alcoholic beverages with nude dancing,” the court wrote.

Because the law was designed to prohibit undesirable secondary effects — such as increased crime and decreased property values — the court determined the law to be content-neutral rather than content-based.

Attorneys for El Marocco argued that the ordinance was unconstitutional, because the city did not have any evidence that the mixing of alcohol and nudity would cause harmful secondary effects.

However, the state high court wrote: “We do not believe that a municipality must first experience for itself the potential adverse effects of allowing displays of nudity at local liquor-serving nightclubs before it can act to preclude these establishments from serving up such a potentially volatile cocktail.

“Indeed, those persons in the town who desire to partake of whatever free-speech frisson may be experienced by permitting, engaging in, or viewing such displays of nudity are not barred by this ordinance from doing so at other commercial locations,” the state high court wrote.

The court said that the ordinance was “appropriately limited to what is needed to achieve the local government’s legitimate interest in avoiding the undesired secondary effects of mixing alcohol consumption with displays of nudity at commercial establishments.”

Daniel Silver, one of the club’s attorneys, called the court’s opinion a “terrible decision.”

“The court basically said that adverse secondary effects can be presumed,” Silver said.

Silver said he would most likely file a motion asking the state high court to reconsider its decision. Silver said he hoped the U.S. Supreme Court would soon render a decision in City of Erie v. PAP’S A.M. and require cities to have some proof of secondary effects in their own area.

The U.S. Supreme Court heard oral arguments in the PAP’S A.M. case Nov. 10 and a decision is expected before the court’s term ends in June.

Kathleen Powers, attorney for the city, said the state high court “properly viewed this ordinance as a time, place and manner restriction.”

Powers says that many other courts have ruled that a city does not have to produce actual evidence of secondary effects in its own locale before passing these types of ordinances.

“The decision is consistent with decisions by several federal courts,” she said.