Swimsuit club claims county selectively enforced adult entertainment law

Thursday, June 18, 1998

A federal judge in Orlando, Fla., must decide whether Orange County officials violated the First Amendment by allegedly singling out a swimsuit club for violating the county's adult entertainment law.

In Ward v. County of Orange, the owner of Bourbon Street South has sued county officials for regulating his business as an “adult performance establishment.”

Federal Judge Patricia C. Fawsett instructed both sides at a recent preliminary injunction hearing to file additional papers by next Monday.

William Ward contends county officials have engaged in a pattern of selective enforcement by singling out his “non-nudity” business, which allows customers to slow dance with women clad in swimsuits, dresses or hot pants.

Ward alleges in his lawsuit that “the dancing that occurs at Bourbon Street is constitutionally protected by the First Amendment to the United States Constitution” and that county officials have engaged in an unconstitutional pattern of “selective enforcement and application” of the adult entertainment code.

The county code empowers officials to regulate “adult performance establishments.” However, under the law, a business does not qualify as an adult establishment if “the predominant business or attraction of the establishment is not offering to customers a product, service or entertainment which is intended to provide sexual stimulation or sexual gratification to such customers and the establishment and its advertising …[do not emphasize] … specified sexual activities or specified anatomical areas.”

Ward argues that his business, which features no nudity and no alcohol, does not meet the definition of an adult performance establishment. He says county officials have targeted his business and want to close it down.

Steven Mason, Ward's attorney, says that his client has had to temporarily close his business because his employees have been continually arrested. He said: “The government officials have engaged in viewpoint discrimination because they have singled out the expressive conduct that goes on at the Bourbon Street, while not enforcing the ordinance against other forms of dance that are far more sexual in nature.”

Mason cited several affidavits from private investigators who frequented other businesses that offered striptease dancing without regulation. For example, investigator Cheryl Perron testified in her affidavit that she entered a nightclub that featured male striptease dancers on “Ladies Night.” According to Perron, the dancers, clad only in G-string-like T-backs, would engage in such activities as doing a “lap dance” for the women and “…play[ing] with the ladies' breasts.”

The lawsuit also argues that even if Bourbon Street somehow qualifies as an “adult performance establishment,” a swimsuit club cannot be lumped together with other sexually oriented businesses because it does not cause the same harmful secondary effects—increased crime and property devaluation–allegedly caused by such businesses.

Mason obtained an affidavit from the owner of a business nearby saying that: “Bourbon Street South has been a good neighbor. I have never seen any prostitution, drunks or hooligan activity occurring outside the business.”

Says Mason: “This is a precedent-setting case with respect to the secondary- effects doctrine. Many times judges will dismiss claims at the preliminary-injunction stage. I hope her requiring additional filings signifies her taking a close look at the government officials' actions in this case.”

A call placed to the county attorney was not returned.